T SUNDARI Vs. SAKAL SAHNI

JUDGEMENT

(1.) The petitioners are the plaintiffs of Title Suit No. 191 of 1964, in which an ex parte decree was passed in their favour on the 5th February, 1970. On the 29th May, 1970, the defendant first party applied under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree on the ground that he was prevented by sufficient cause from appearing in court when the suit was called on for hearing on the relevant date. The sufficient cause thus propounded by the defendant was to the effect that he had been relying upon the defendant second party to give him the requisite information for taking requisite steps on the different dates in the suit, but the defendant second party went in collusion with the plaintiffs and did not inform the defendant that the suit was going to be taken up for hearing or that an ex parte decree had already been passed therein. The case of the defendant further was that on the 2nd May, 1970, he filed a petition for inspection of the records and the records were inspected on the 5th May, 1970, when the defendant learnt for the first time that an ex parte decree had already been passed in the suit on the 5th February, 1970.

(2.) The learned Additional Munsif has accepted the case put forward by the defendant and has come to the conclusion that on account of betrayal of confidence reposed by the defendant in the defendant Second Party, he was prevented by sufficient cause from appearing in court on the 5th February, 1970, when the suit was called on for hearing. The learned Additional Munsif has further accepted the defendant's case to the effect that he derived knowledge of the ex parte decree as a result of the inspection of the records on the 5th May, 1970.

(3.) The learned Additional Munsif was then faced with the question of limitation which had to be decided under Article 123 of the Limitation Act 1963. That Article provides a period of thirty days for making an application to set aside an ex parte decree; the starting point of the period of limitation being "the date of the decree or where summons or notice was not duly served, when the applicant had the knowledge of the decree". The instant case was not one where the summons in the suit had not been served upon the defendants so that the starting point of limitation period of thirty days could not possibly run from the date of knowledge of the decree which, in the present case, as found by the trial Court Was the 5th May, 1970. The starting point of limitation in the present case was undoubtedly the 5th February, 1970, which was the date of the ex parte decree which was sought to be set aside under Order IX, Rule 13 of the Code of Civil Procedure. The learned Additional Munsif was conscious of the legal position as indicated above. So he proceeded to give relief to the defendant under Section 5 of the Limitation Act. It may be mentioned here that actually no formal petition for condonation of the delay in presenting the application under Order IX, Rule 13 of the Code of Civil Procedure had been filed on behalf of the defendant. Even then it was incumbent upon the defendant to satisfy the court that he was prevented by sufficient cause from making an application under Order IX, Rule 13, Civil Procedure Code within the period of limitation. Upon the finding that the defendant got knowledge of the ex parte decree on the 5th May, 1970, it may be assumed, that the learned Munsif was satisfied that the defendant had sufficient cause for not making the application prior to the 5th May, 1970. But the learned Munsif went a step further and from the mere circumstance that the defendant had no knowledge of the ex parte decree prior to the 5th May, 1970, he jumped to the conclusion that the defendant had explained the delay in filing the application right up to the 29th May, 1970. This conclusion of the learned Additional Munsif is due to a complete mis-appreciation of the scope of Section 5 of the Limitation Act. It is well settled that in order to avail of the benefits of Section 5, the party at default must satisfy the court that it had sufficient cause for not making the requisite application right up to the date on which the application is presented. In other words, the party at default must satisfactorily explain or account for each day's delay in making the application. Unless the Court is satisfied in respect of each day's delay in making the application, it has no authority in law to condone the the delay under the provisions of Section 5 of the Limitation Act. Reference in this connection might usefully be made to Sitaram Ram Charan v. M. N. Nagrashana, AIR 1960 SC 260 at p. 265, where their Lordships observed thus:--