BAIKUNTH SAHU Vs. MOHAMMAD SADIQUE

JUDGEMENT

(1.) This application in revision is by the plaintiff against an order setting aside an ex parte decree passed in his favour on the 19th of March, 1952, in Title Suit No. 57 of 1950 in the Court of the Munsif, Giridih.

(2.) The suit was instituted by the plaintiff petitioner for declaration of his title to and for possession over a piece of land measuring 2 Kathas 13 dhurs bearing holding No. 917 of Ward No. 3 of the Giridih Municipality & survey Plots Nos. 2834 and 2835, as having been acquired by him by purchase from defendants 9 and 10. Different sets of defendants filed written statements on different dates and the suit was fixed for final hearing on the 18th of March 1952. On that date, the defendants' lawyers informed the Court that they had no instruction, and the suit was adjourned to the next date viz., the 19th of March 1952, for hearing. On that date also, the defendants did not take steps and the suit was heard ex parte but in presence of minor respondents 3 and 5, who were represented by guardians appointed by Court. The ex parte decree was also passed in the suit on the same date. On the 21st October 1952, defendant No. 1 filed an application for setting aside the ex parte decree and the Court below, after hearing the parties, set it aside by its order stated above. Being, thus, aggrieved, the petitioner has come u'p to this Court in revision.

(3.) On the facts stated above, it is manifest that the application for setting aside the ex parte decree was made more than thirty days after the passing of the decree. The main question which, therefore fell to be decided in the case was whether the application was barred by limitation. The Court below held that defendant No. 1, the applicant before it. got knowledge about the ex parte decree, only in October 1952 on his return from Madhupur, where he was suffering from tuberculosis and, as such, the application filed by him on the 21st October 1952 was not barred by limitation and was within time. The period of limitation prescribed for filing an application for setting aside an ex parte decree is provided in Article 164 of the Indian Limitation Act, according to which such an application should be filed within thirty days from the date of the decree or, where the summons was not duly served, from the date on which the applicant got knowledge of the decree. It is, thus, manifest that, if summons had been served on the defendant, the application must be made within thirty days from the date of the decree itself. In the present case, the application which was made under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree was not based on the ground that no summons had been served on the applicant. It was admittedly based on the only ground that the applicant, due to his illness, was prevented from appearing before the Court when the case was called out for hearing. The case, therefore, proceeded on the footing that summons had been served on the applicant. In that view of the matter, Part 1 of Article 164. which provides the counting of the period of thirty days from the date of the decree, will be applicable and not the other part which provides the period to be counted from the date of knowledge. This view was taken by Rai J., sitting singly, in Jogia v Commr. of the Darbhanga Municipality, C. R. No. 605 of 1950, D/- 8-5-1951 (Pat) (A) Following this decision. I sitting singly in Mt. Bibi Rafiquan v. Gopi Mahton, 1953 BLJR 442 : (AIR 1953 Pat 399) (B), took the same view. Nothing has been placed before us on which I can take a view of the law on the subject different from what I took in this case. The language of Article 164 is plain and no authority is required to understand it. The Article clearly says that the thirty days will be counted from the date of the knowledge of the decree where summons was not duly serv- ed; but, if there is no case of non-service of summons, then the period is to be counted from the date of the decree itself as already observed. The (view that I have taken gains support from a Bench decision of the Calcutta High Court in Tara Sankar Ghose v. Nasaruddi, AIR 1916 Cal 651 (C) and a Bench decision of the Assam High Court in Manindra Chandra v. Churamani, AIR 1949 Assam 5 (D). It is, thus, clear that the application filed for setting aside the ex parts decree was barred by time.