JAINARAIN SINGH Vs. LACHMI PRASAD AGARWAL

JUDGEMENT

(1.) This is an application by the respondent for getting aside an ex parte decree passed by this Court on 1 September 1947, allowing the appeal in his absence under the following circumstances.

(2.) It appears that the respondent was served with the notice of appeal on 20th May 1947, intimating that the case was to be heard on 28 July 1947, the notice being in the usual form. The respondent filed a vakalatnama executed in favour of Mr. K.K. Sinha, an advocate of this Court on 23 July 1947. The appeal was listed on the list of ready cases, which under the rules is published every week, for the first time on n August, 1947. In the weekly list of ready cases to be heard during the week commencing 20 September 1947, which was published on 30th August 1947, this appeal was again put down mentioning the name of Mr. K.K. Sinha as the advocate appearing for the respondent. It was also set down in the daily cause list of the cases to be heard on 1 September 1947. The name of Mr. K.K. Sinha, as the advocate for the respondent was not mentioned in this list. The appeal was taken up for hearing on 1 September 1947, and Ray J. before whom the case was listed, heard the appeal and, as stated by him in the judgment, there was no appearance for the respondent. He allowed the appeal. This application is made on behalf of the respondent for setting aside the judgment and the decree passed by this Court on the ground that the respondent was prevented from appearing on the date on which the case was heard, because his advocate was not, in the circumstances already stated, served with the notice of the actual date of the hearing of the appeal. He also states in the affidavit filed by him that he had. no knowledge of the ex parte decree passed by this Court before 15 March 1948, when as stated by him, he was informed by one Babu Ramsaroop Kumar, Mokhtar that the appeal pending before this Court bad been allowed. The petitioner further states in his affidavit, that thereafter he came to Patna and caused an enquiry to be made into the matter, and on inspection of the record he came to learn that his case was disposed of by this Court on 1 September 1947 and that there was no appearance on his behalf.

(3.) The question which arises for decision is as to whether, in the circumstances, it can be held that the notice of the appeal was not duly served upon him within the meaning of Order 41, Rule 21, Civil P.C., and that of Art. 169, Limitation Act entitling him to file this application foe setting aside the ex parte decree within 30 days of the date of the knowledge of the decree alleged by him. There is a counter-affidavit filed on behalf of the opposite party stating that it is not correct that the petitioner did not know of this ex parte decree before 15 March 1948. What is stated in the counter-affidavit filed on behalf of the opposite party is this: The applicant got knowledge of the result of the appeal only a week after 1 September 1947, and then applicant Jainarain Singh approached this deponent for a compromise which the deponent could not agree on the terms offered by him. This statement is controverted by the petitioner by an affidavit in reply filed on his behalf. It states: The applicant Jainarayan Singh never approached Lakshmi Prasad Agarwala for any purpose much less for a comprumise at any time till today. Having considered the matter carefully, I am inclined to believe that the petitioner did not know of this ex parte decree before the date on which, he alleges, he came to know of it. Obviously there is no reason why if he had known of this ex parte decree earlier he would have delayed in moving this Court for setting aside the ex parte deoree. It is clear that he did intend, and, did all that was required of him, to oppose this appeal by engaging Mr. K.K. Sinha as his advocate to represent him in this Court. It cannot be said that he was not interested in opposing this appeal and that this application for having that ex parte decree set aside is only an afterthought.