S VENKATASUBBAIYER Vs. SKRISHNAMURTHY

JUDGEMENT

(1.) In this case the plaintiff obtained an ex parte decree against the defendant on the 28th August 1912. On the 3rd September the defendant died. On the 30th September his executor made an application to set aside the decree. The executor had not taken out probate and he had not been made a party to the suit when he put in this application. The learned Judge held that the matter was governed by Article 164 of the first schedule of the Limitation Act and dismissed the application as barred by limitation. The question is "was the learned Judge right?" The learned Judge puts it thus: "The right to make the application accrued to the first defendant on the date of the decree and this right may accordingly be exercised by his executor. The latter has no fresh right apart from his testator. Ha only comes to the Court asking that the right formerly possessed by the deceased may be exercised by him." On behalf of the appellant it was argued that Article 164 did not apply, that the question was governed by the provisions of the general Article 181 and that the application was not time-barred. It was argued that the word "defendant" in Article 164 did not apply to a parson occupying the position of the executor in this matter; but that, if the executor was defendant, within the meaning of the words in the first column of the article, the summons had not been duly served and time began to run from the time when the executor had knowledge of the decree. It was pointed out that the word used in the third column was not defendant but "applicant." The short answer to the latter contention seems to me to be this. The alternative date applies only where the summons was not duly served and the party with reference to whom that provision was made is the original defendant. Here the summons was duly served on the original defendant. At any rate it has not been suggested it was not. The fact that he unfortunately died soon after the service does not render the service any less effective. The argument on behalf of the respondent was that "defendant" in Article 164, reading that article, by the light of Section 146 of the Code of Civil Procedure, includes an executor even if he is not., when the application is made, a party to the suit. The application here is made by the executor either under the powers given by Section 146 or powers already existing which are recognised by that section. That section was probably introduced on account of the conflict of authority in this matter. In Ganoda Prosad Roy v. Shib Narain Mukerjee (1902) I.L.R., 29 Calc., 33, it was held that where a defendant against whom a decree has been passed ex parte dies, his legal representative when he has been brought on the record is competent to apply under Section 108 of the Code of Civil Procedure for an order to set aside the ex parte decree. (Section 108 of the old Code corresponds to Order IX, Rule 13 of the present Act.) In the Allahabad High Court a different view had been taken. It ia now settled that where a defendant against whom an ex parte decree has been passed dies, his legal representative if he has been made a party to the suit can apply for an order to set aside the ex parte decree. But although the original intention of the Legislature may have been to provide for a class of case3 such as that, which came before the Calcutta High Court in Ganoda Prosad Boy v. Shib Narain Mukerjee (1902) I.L.R., 29 Calc., 33, there is no reason, as it seems to me, why for the purposes of construing Article 164 of the Limitation Act, we should restrict the application of Section 146 of the Code to the class of cases which, it may be, the Legislature had in mind when they enacted Section 146, i.e., cases where the legal representatives were on the record. On the true construction of Article 164 read by Section 146 it seems to me that the word "defendant" is wide enough to indicate the executor of the original defendant, though he may not have been brought on the record when the application is made.

(2.) If the executor had been made a party before he made his application to set aside the ex parte decree, but made the application after the expiration of thirty days from the date of the decree, and Article 164 had been pleaded, it seems to me the executor would have no answer. If the appellant is right in his contention that Article 164 does not apply, the executor, though not on the record, is in a better position than if he were on the record. If he were on the record, he would be within the article and would only have thirty days from the decree. Not being on the record, Article 164 does not apply, and he can claim the benefit of Article 181. That is the argument. I do not think that any such result was in the contemplation of the Legislature. It may be that cases of hardship may arise by reason of there being only thirty days within which the executor who is on the record, or a party who can apply under Section 146 of the Code without being on the record can take action for the purpose of getting an ex parte decree against a deceased defendant set aside. But we have to look to the enactments.

(3.) I think we ought to dismiss the appeal with costs. Oldfield, J.