LABHURAM Vs. KUBERDAN

JUDGEMENT

(1.) THIS is a revision by Labhuram who is plaintiff in the trial court, against an order passed by that court setting aside an ex parte decree made in the following circumstances.

(2.) THE petitioner instituted a suit against the opposite party for recovery of money. It is unnecessary to narrate the facts on which the suit was founded for the purposes of the present revision. Suffice it to say that the defendant opposite party was served, a written statement was put in, issues were framed, and the case was posted for evidence, and some evidence having been led by the plaintiff the suit was adjourned for further evidence of the plaintiff to the 17th March, 1953. On that day, neither the plaintiff nor his counsel was present in court. THE defendant was also absent. THE trial court, therefore, dismissed the suit under O. IX, R. 3, C. P. C. It is not in dispute that an application for restoration of the suit was made by counsel for the petitioner on the same day. No notice was issued for this application to the opposite party, and the trial court allowed the application and restored the suit. What is important to observe is that the court, on the prayer of the petitioner, proceeded to record the evidence of his witnesses who were present on that very day, and closed his evidence. THE court then proceeded to fix the case for judgment for the next following day, that is, the 18th March, 1953, with the result that the suit was decreed against the defendant opposite party. THEreafter the petitioner took out execution of his decree against the opposite party. When the latter thus came to know of the decree, he raised an objection in exe-cution proceedings that he had no knowledge of the decree and so it should not be held to be binding on him and should be set aside. To this, on the 25th September, 1953, the petitioner objected on the ground that such an application could not be considered on the execution side but should have been made in the original suit itself. THE court upheld this objection. THEreafter on the 24th October, 1953, the opposite party made an application in the original suit in which he stated that he was present in court on the 17th March, 1933 on which date the suit stood adjourned for the recording of the petitioner's evidence and that as neither the petitioner nor his counsel was present in court, the suit had been dismissed and thereafter the opposite party left the court. He further stated that no notice had ever been issued to him that an application for restoration of the suit had been made in court on behalf of the petitioner (plaintiff) nor was he ever informed that the suit had been restored and was to be proceeded with. It was further contended on behalf of the opposite party that he came to know of the decree only when the petitioner sought to execute it against him and that he then raised the objection that the decree was illegal and that it should be set aside, which objection had been met by the petitioner by the plea that an objection like that could not be raised on the execution side. THE defendant opposite party, therefore, urged that the suit should not have been restored to file without notice to the former, at any rate, it should not have been proceeded with after restoration without notice to him, and as it had been restored by a mistake of the court, the ex parte decree passed against him be set asides. A specific point was raised in the application that for an application made in such circumstances, there was no period of limitation. When this application came before the court for consideration, both parties were heard, and trial court eventually set aside the ex parte decree. THE present revision has been filed against that order.