JANKI PRASAD Vs. PARMESHWAR DIN PANDEY

JUDGEMENT

(1.) THIS is an application for revision of an order of the Munsif of Basti setting aside a decree passed ex parte against the respondent and restoring the case to the pending file. It appears that the ex parte decree against the respondent was passed as long ago as 1909 when the respondent was in jail. Two applications to set aside the decree were presented by his wife acting on a power-of-attorney from her husband. Both applications were rejected. The respondent was released from jail in September 1913, and on March the 18th, 1914, he presented a third application, which has resulted in the order against which this application for revision is directed. It is quite clear that as an application to set aside a decree passed ex parte it was barred by limitation under Article 164, Schedule I, to the Limitation Act. Possibly, however, it might have been treated as an application by the respondent for review of judgment. In that case it was prima facie barred by limitation; but it was open to the Court to hold that the respondent had established sufficient cause for not preferring the application sooner. The Munsif did not consider whether the application Was barred by limitation; but lie set aside the decree on the ground that the respondent being in jail at the time of the hearing of the suit had been prevented from attending the Court and defending the suit properly. After saying this be added: "Therefore for the ends of justice I am of opinion that the ex parte decree should be set aside and the defendant be given an opportunity of defending the suit." It appears to us that the proceedings of the Munsif were irregular and possibly also without jurisdiction. He ought to have considered whether the application before him treated as an application under Order IX, Rule 13, of the Civil Procedure Code, had been made within time, or if he treated the application as one for review of judgment he should have considered whether the applicant had established sufficient cause for not applying till March 1914. He took neither of those courses and he assumed that he had jurisdiction to set aside a decree five years after it was passed, simply because in his opinion the applicant had not had a fair chance of defending the suit. If he had taken up the question of limitation and decided it wrongly we could not have interfered. But he did not apply his mind to the case which he had to decide. As it is, it seems to us impossible to allow his order to stand. We set aside the order and direct that the Munsif do take up the application of the respondent and dispose of it according to law. Costs of this application will be costs in the cause.