JIBKANT JHA Vs. MAHARANI ADHIRANI SHRI RAJ

JUDGEMENT

(1.) THIS application has been filed by the plaintiff of Title Suit No. 125 of 1967, which had been decreed ex parte on the 23rd May, 1970. Defendants second party of the suit filed an application on the 28th August, 1970 for setting aside the ex parte decree and that application has succeeded.

(2.) THE plaintiff's case in the suit was, that, defendants second party bad settled a tank with him for 13 years from 17th September, 1963. Defendant first party had also claimed settlement of the same tank for some time. THEre is no doubt, that, the defendants second party had appeared in the title suit. According to defendants second party, they had left the pairvi of the title suit to defendant first party and pairvi of this suit was suddenly left by defendant first party, with the result that the suit was decreed ex parte on 23rd May, 1970. According to defendants second party, the petitioners in the court below, had no knowledge of the ex parte decree till 10th August, 1970 and thereafter proceedings were taken to obtain the necessary information.

(3.) HAVING heard learned counsel for the petitioner, I am of the opinion, that, the order of the learned Munsif was wholly erroneous and that, in view of his conclusion on the question of limitation, he could not have allowed the application for setting aside the ex parte decree in question. The learned Munsif has not derided how the period of 30 days of limitation was to be extended in this case and the learned Munsif was influenced by the defence that had been raised in the original suit by defendants second party. The learned Munsif was in error in considering such aspect of the matter in this case, when the question of limitation for the application for setting aside the ex parte decree had arisen. On the ground that the defendants second party would suffer loss if the ex parte decree is allowed to remain, the decree could not have been set aside, when the application for setting it aside filed beyond limitation and no question of condoning that limitation arose nor was the delay condoned. In such circumstances, the judgment and order passed by the learned Munsif dated the 2nd April, 1971 restoring Title Suit No. 125 of 1967 to its original file is set aside. The civil revisional application is allowed. As the opposite parties have not appeared, there will no order for costs.