MEMYNA Vs. ETKADDIN AND OTHERS

JUDGEMENT

(1.) On 26-3-1987 the ex parte order was passed against the petitioner. On 28-7-1989 the petitioner filed an application under Order 9 Rule 13 of the Code of Civil Procedure and as the application for setting aside ex parte decree was barred by limitation, the petitioner also moved an application under Sec. 5 of the Limitation Act. The bone of the contention of the petitioner was that for the first time she came to know about the passing of ex parte decree on 19-7-1989, and thereafter, he had moved an application on 28-7-1987 for setting aside ex parte decree and also for condonation of delay. In a reply to the application under Order 9 Rule 13, it is contended by the first respondent that the petitioner had knowledge of the passing of the ex parte decree on 4-2-1989 and, therefore, application under Order 9 Rule 13 of the C.P.C. is barred by limitation.

(2.) The trial Court after consideration of the material on record, have decided the application u/S. 5 and held that the petitioner had knowledge of the decree passed against her on 4-2-1989, and therefore, the application filed for setting aside ex parte decree on 28-7-1989 is barred by limitation and consequently dismissed the application under Order 9 Rule 13.

(3.) Aggrieved by the said order, the petitioner preferred an appeal. The Appellate Court has found that on 4-2-1989 the Sale Ameen went to the house of the petitioner for execution of the decree. The petitioner was present in the house and refused execution. This fact was reported by the Sale Ameen to the Court, and prayed for police help to execute the decree and on 15-5-1989 the police help was provided with. Under these circumstances, it cannot be said that the petitioner had no knowledge of passing of the decree against her and for the first time she came to know about the decree on 19-7-1989 and dismissed the appeal. It is contended by the counsel for the petitioner that the limitation has to be counted from the knowledge of the passing of the decree and thus, the application for setting aside ex parte decree was within limitation. It is true that in case of an ex parte decree, the limitation has to be counted from the date of the knowledge of the decree where it has been proved that the summons have not been duly served. But in the present case two courts have concurrently found that the petitioner had knowledge of the passing of the decree on 4-2-1989 and not from 19-7-1989. On this concurrent finding, the application for setting aside the ex parte decree filed on 28-7-1989 was apparently barred by limitation.