OM PARKASH Vs. MOHANT HARI KRISHEN

JUDGEMENT

(1.) THIS revision petition arises in the following circumstances :

(2.) MOHANT Hari Krishen, the respondent herein brought a suit for ejectment and recovery of Rs. 5,600 for use and occupation or the suit house against the two petitioners, Om Parkash and Satpal, and one Neak Ram in the Court of Sub Judge, Jammu. The defendants having failed to appear despite service, an exparte decree for ejectment and recovery of Rs. 5,600 was passed on 10.11.1979 against the petitioner Om Parkash alone, and the suit was dismissed against the other two defendants. An application for setting aside the same was made on 4.3.1980 by the petitioners in terms of Order 9 Rule 13 C.P.C. on the grounds : firstly, that they were not duly served in the suit secondly, that inspite of that they had engaged one Mr. B.K. Bhasin advocate to represent them in the Court, who acted negligently and allowed the suit to proceed exparte against them; thirdly, that he never informed them that an exparted decree had been passed against them; and fourthy, that they had learnt about the decree for the first time on 28.2.1980 whereafter they applied for a copy of the decree and filed the application immediately after the copy was obtained.

(3.) AN appeal from the aforesaid order was taken to District Judge Jammu which also met with the same fate. The learned District Judge dismissed it by holding that the application for setting aside the ex parte decree was barred by time, because not only had the petitioners been duly served in the suit, but also they had acquired full knowledge of the suit from there counsel Mr. Bhasin. He, however, did not advert to the finding recorded by the trial court that they had also acquired any knowledge of the decree from the respondent and his witness. As both the petitioners as well as their counsel in his opinion were equally negligent in defending the suit, he dismissed the appeal on the ground that the application for setting aside the ex-parte decree was barred by limitation. The exparte decree, as already noticed, was passed against the petitioner Om Parkash only. The other petitioner, namely, Sat Pal had, therefore, no right to file the application for setting aside the same, and consequently no right to go in appeal before the District Judge as well to this court in the present revision petition. An application for setting aside an ex-parte decree is governed by Article 164 of the Limitation Act which read as under :