SUBASH RAINA Vs. SURAJ PARKASH

JUDGEMENT

(1.) THIS is a composite application under Order 37 R. 4 and Order 20 R. 11 (2) of the Code of Civil Procedure by the defendant judgment debtor against whom a decree has been passed under Order 37 R. 3 C. P. C.

(2.) THE plaintiff instituted a suit on the basis of a hundi for the recovery of Rs. 2000/ -. A notice was issued to the defendant to appear and seek leave to defend the suit in terms of Order 37 R. 2 C. P. C. As the defendant did not appear despite service so an ex parte decree was passed against him on 5th of September, 1975. The present application has been made by the defendant on 17 -1 -1976 i. e. four months and 12 days after the passing of the decree. He seeks to set aside the decree on the ground that he was undergoing training for six months Condensed Course at Police Training School, Phillaur. No doubt the petitioner was served and he had to seek permission to defend the suit but he sent a telegram seeking adjournment of the case. The defendant was under the bona fide impression that he would be informed of the next date of hearing but this was not done and an ex parte decree was passed against him.

(3.) LEARNED counsel appearing for the plaintiff respondent has taken an objection that the application is barred by limitation. According to him an application for setting aside the ex parte decree passed under Order 37 of Code of Civil Procedure should be made within 30 days from the date of the decree under Art. 164 of the Limitation Act. As the application has been made beyond the prescribed time, so it is liable to be dismissed. Another objection raised is that the application being composite for setting aside the ex parte decree and also for fixation of installments does not lie.