Dharam Pal vs Gajjan Singh and others

Mehar Singh, C.J.—The applicant was the Defendant against whom a suit for declaration to have an earlier decree in his favour set aside on the ground of fraud and misrepresentation was filed by the Respondents as Plaintiffs. In the suit the applicant was duly served, a fact admitted by him, but he forgot about the suit and the trial Court proceeded exparte against him.

While the suit was in trial, it was transferred from the first Court, entertaing it, to another Court, but on that transfer no information of the transfer of the suit was conveyed to the applicant according to paragraph 6 in Chapter XIII of Volume I of the Rules and Orders of this Court, which enjoins the Court from which a case is transferred to inform the parties of the transfer of the case. An ex-parte decree was made against the applicant on July 31, 1965.

It was on January 25, 1966 that the applicant moved an application under Order 9, Rule 13 and Section 151 of the CPC for setting aside the exparte decree against him stating that he had obtained knowledge of the ex-parte decree on January 3, 1966, from his Advocate who in some other proceedings between the same parties before a revenue officer, before whom a copy of the judgment and decree were produced and read, came to know of the same on January 3, 1966. and so he made his application for setting aside the ex-parte decree against him within thirty days from the date of knowledge of that decree.

In the Limitation Act, 1963 (Act 36 of 1963), Article 123 provides a period of limitation of thirty days to set aside a decree passed ex-parte or to rehear an appeal decreed or heard ex-parte, the starting point of limitation being ''the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree'', the explanation to the article not being relevant here. The learned trial Judge following Charanjit Rai Marwaha v. Ghansham Dass-Hanuman Parshad (1954) 7 Punj. 103. came to the conclusion that the case had been transferred to another Court, the applicant as Defendant in the suit was entitled to information of the transfer according to paragraph 6 in Chapter XIII, Volume I of the Rules and orders of this Court and that he was not so informed. However, the learned Judge was further of the opinion that this did not assist the applicant because nothing in Article 123 refers to any such information or the starting point of limitation being from the date of any such information. He very rightly says that the word summons'' refers to a suit in which an ex-parte decree is passed, and the word ''notice'' to an appeal in which an ex parte decree is made or which is heard ex-parte so far as Article 123 is concerned, and obviously any information which a Court is under a duty to convey according to paragraph 6 in Chapter XIII, Volume I, of the Rules and Orders of this Court is not within the meaning and scope of either the words ''summons'' or the word ''notice.'' So the learned Judge dismissed the application of the applicant as barred by time.

There is only one argument urged by the learned Counsel for the applicant that having regard to Charanjit Rai Marwaha''s case and Krishan Lal Malhotra v. Madan Lal, A. I. R. 1950 Lah. 43. which is a decision to the same effect, the applicant, in spite of an order that the proceedings in the suit were ex-parte against him remained a party to the suit and as he was entitled to information of the transfer of the suit and that information was not given to him. so to a case like this the starting point of limitation under Article 123 should be not the date of the decree but the date of the knowledge of the ex-parte decree. This assumes that the information which is to be conveyed according to Paragraph 6 as referred to above, is in the nature of a summons as referred to in Article 123, but this is not correct. There is nothing in that article which makes it applicable to any information which a Court has duty to convey to the parties in regard to the transfer of a case under paragraph 6 of Chapter XIII, Volume I, of the Rules and Orders of this Court, Article 123 has to be read as such and where a decree is sought to be set aside within the prescribed period of limitation on the ground of reckoning that period from the date of knowledge of that decree, then where it is a case of a suit it must be shown that the ''summons'' was not served, and where it is a case of an appeal, it has to be shown that there was no notice of the appeal, but there is a case in which it is admitted on the side of the applicant as Defendant that he was duly served of the summons in the suit against him but that he being a big businessman and being rather busy completely forgot about the suit. So that, in the circumstances, the approach of the learned Judge on the question of limitation was without exception. This revision application fails and is dismissed with costs, counsel''s fee being Rs. 32/-.