RAVINDER SINGH JAMWAL Vs. BHARAT SACHAR NIGAM LTD.

JUDGEMENT

(1.) Heard.

(2.) Suit filed by respondent before the trial Court of learned District Judge Udhampur was decreed in exparte in terms of judgment rendered on 10.01.2008. Appellant filed application under Order 9 Rule 13 CPC on 12.02.2008 for setting aside of exparte decree. The application was dismissed in terms of impugned order dated 29.08.2009 passed by the learned District Judge Udhampur who arrived at the conclusion that the application seeking setting aside exparte decree should have been preferred latest by 11.02.2008 and since the same had been filed on 12.2.2008, it was barred by limitation.

(3.) The decree having been passed in exparte on 10.01.2008, application for setting aside the same was required to be filed within 30 days from the date of decree in terms of Article 164 of the Limitation Act. While computing the period of limitation, the date of decree has to be excluded. Therefore, appellant could have preferred the application under Order 9 Rule 13 CPC within 30 days, i.e. up to 09.02.2008. The time spent in obtaining the certified copy of exparte decree had to be excluded while computing the prescribed period of limitation. From impugned judgment, it emerges that the appellant applied for obtaining copy of the decree on 23.01.2008 and the certified copy was delivered to him on 24.01.2008. Thus, he was entitled to a grace period of two days. The application under Order 9 Rule 13 CPC could thus be filed on or before 11.02.2008. That was not done. The appellant approached the trial Court with application under Order 9 Rule 13 CPC on 12.02.2008, i.e. after a delay of one day and his application came to be dismissed for being barred by limitation. Learned Court below has observed that 11.02.2008 happened to be a working day of the Court. Thus, the appellant could not claim that he was unable to file appeal on the last day of limitation period owing to a public holiday etc.