JIA BIBI Vs. ILAHI BAKHSH

JUDGEMENT

(1.) THIS is an appeal against an order of the Subordinate Judge of Azamgarh, rejecting an application for setting aside a decree passed ex parte against the appellant in 1904. Her case was and is that she did not come to know of the decree in question until a proclamation of sale was brought to the village in December, 1912, that is, less than thirty days before she presented her application. The evidence shows that the plaintiffs in the suit made repeated efforts to serve her personally with notice of the suit and of subsequent proceedings. Substituted service was effected and declared to be sufficient by the court. She has herself sworn that she did not come to know of the decree against her until a few days before she, made her application. Evidence has been produced on behalf of the respondents which has been accepted by the court below, that she was aware of the suit at the time when it was pending and was anxious to enter into a compromise. It is almost inconceivable that she would have remained ignorant of this suit, as she says, for eight or nine years. She says that she has been quarrelling with her son-in-law for the last twenty years. She must have other relatives who must have come to know of the suit, and we think there can be little doubt that she knew of the suit while it was pending. We accept the evidence which has been produced by the respondents to prove that she was aware of the suit. It is contended that the application should be governed in the matter of limitation not by Article 164 of the Limitation Act which was in force at the time when the appellant made he* application, but by Article 164 of the Limitation Act of 1877, which provided that an application to set aside a judgement ex parte might be made within thirty days from the date of executing any process for enforcing the judgement. It is conceded that no such process was executed before the passing of the new Limitation Act. It has been repeatedly held that in a case of this kind the law of limitation to be applied is the law existing at the time when the application is made. It is sufficient to refer to the decision of the Bombay High Court in The Hope Mills Limited v. Vithaldas Pranjivandas . There can be no doubt that the application is governed by the present Limitation Act and is barred thereby and was rightly dismissed both on the merits and also on the ground of limitation. THIS appeal fails and is dismissed with costs.