SHAH SHANTILAL AND CO Vs. TESHIBORWALLA

JUDGEMENT

(1.) This is a revision petition filed by the defendant against the order of the Second Judge of the Court of Small Causes, Madras, dismissing an application to set aside an ex parte decree passed on 26 August, 1948. The plaintiff filed a suit against the defendant residing in Bombay for recovering a sum of Rs. 636 being the amount due to him in respect of goods sold and delivered to the defendant. The suit stood posted to 4 August, 1948 for hearing, and summons was taken out by the plaintiff but it was not served on the defendant till 2nd August, 1948. On that date the defendant seems to have sent a telegram to the office of the Registrar of the Court of Small Causes, requesting the Court to grant him time; but this does not seem to have been brought to the notice of the Court on 4 August, 1948, to which date the case was fixed for Hearing. Since the summons was not returned, it was directed that substituted service should be effected upon the defendant, and the case was posted to 26 August, 1948, for final hearing. As the defendant did not appear and contest the suit on that day a decree was passed ex parte for a sum of Rs. 636-4-0.

(2.) The defendant filed an application on 27 September, 1948, to set aside the ex parte decree on the ground that he had no knowledge of the decree till the 5 September, 1948. The learned Judge dismissed the application on the ground that the application was barred by limitation, as it was not filed within 30 days from the date of the decree. Against this order the unsuccessful defendant has preferred this civil revision petition.

(3.) Mr. Balakrishnayya, the learned Counsel for the petitioner, contends that, the view of the learned Judge that the application for setting aside the ex parte decree is barred by limitation under Art. 164 of the Limitation Act is erroneous. According to him the 30 days time prescribed under Art. 164, Limitation Act applies not only to the date of the decree but also to the date of the knowledge of the defendant of the decree. Art. 164, provides that the 30 days period for filing an application to set aside a decree passed ex parte runs from the date of the decree, or where the summons was not duly served, when the applicant has knowledge of the decree. Admittedly by the time the application to set aside the ex parte decree was filed the 30 days time fixed under Art. 164 had elapsed from the date of the passing of the decree. The learned Counsel for the petitioner states that since the petitioner had knowledge of the decree only on the 5 September, 1948, the petitioner was in time in filing the application for setting aside the ex parte decree on 27 September, 1948. It must be stated that the second part of the Art. applies only when a defendant was not duly served with summons. In this case it is clear from the material on record that on 4 August, 1948, the first hearing date, substituted service was directed to be effected on the defendant by the Court.