RAJESHWARI PRASAD SINGH Vs. BRAHMANAND LAL

JUDGEMENT

(1.) This application in revision is directed against an order of the Small Cause Court judge of Arrah, refusing to set aside an ex parte decree, passed against the applicant on 2 October, 1931. The application to set it aside was filed on the 8th January 1932, the defendant-applicant's case being that he came to know of the decree on the 12 December 1931, when he was arrested in execution of that decree. The learned Small Cause Court Judge has rejected the application on two grounds: first that though the service of summons on the defendant-applicant was not proper, the defendant nevertheless had knowledge of the suit and the application not having been filed within thirty days of the decree, it was barred by limitation; and secondly, that the defendant-applicant did not comply with the provisions of Section 17 of the Provincial Small Cause Court Act, inasmuch as he did not furnish security either with the application, or at any rate, before the expiry of the period of limitation for filing the application.

(2.) As to the first point, under Art. 164, of the Indian Limitation Act, an application to set aside an ex parte decree must be filed within thirty days from the date of the decree or, where the summons has not been duly served, from the date of the applicant's knowledge of the decree. In the present case the application is obviously not within thirty days of the decree, but as there is a clear finding of the learned Small Cause Court Judge that the summons was not duly served on the applicant, the applicant did come within the second part of the Article, and he was entitled to come within thirty days of his knowledge of the decree. The learned Small Cause Court Judge is in error when he expects the application within thirty days of the knowledge of the suit. The period is to be counted from the date of the knowledge of the decree, and not from the date of the knowledge of the suit. This point need not be persued further as, in my opinion, the decision of the learned Judge is obviously wrong.

(3.) The next question is whether the applicant has complied with the provisions of Section 17 of the Provincial Small Cause Courts Act. It appears that along with his application the applicant filed a duly executed security bond. On that day the Court adjourned passing order on that bond, but later ordered an enquiry as to the sufficiency of the security offered, indicating that it was prepared to accept the security of property if it was found to be sufficient; and that it did not insist on cash security. There was a long delay in conducting the enquiry. Ultimately the security was found sufficient and the bond was registered on the 2 May, 1932, and accepted by the Court. The learned Small Cause Court Judge is in error in thinking that what was filed along with the application on the 8 January 1932, was a draft bond on a plain piece of paper. We have examined the bond ourselves. It was, as I have said, a properly executed security bond on a stamped paper.