K.R. Pentaiah and Another vs Mandabad Harijana Abhivrudhi Sangam

P.L. Narasimha Sarma, J.—The defendants are the petitioners in this revision petition. The revision petition is filed questioning the order of the principal District Munsif, Hyderabad East and North, R.R. District in I.A.No. 499 of 1991 in O.S. No. 69 of 1990, dt. 12-12-1991. By the impugned order, the learned Judge dismissed the application filed under Order 9, Rule 13 C.P.C. for setting aside the ex-parte decree passed on 17-7-1990 in O.S.No. 69/1990. The relevant facts are as follows:

O.S.No. 69/1990 was filed by the respondent-plaintiff for a declaration of title to the property in question and for consequential injunction restraining the defendants from interfering with its alleged possession. Summons were taken out to the defendants in the suit. The summons were served on one V. Prabhavathi on 10-2-1990. The defendants were set ex-parte on the said basis and an ex-parte decree was passed on 17-7-1990.

The defendants filed I.A.No. 499/1991 under Order 9, Rule 13 C.P.C. for setting aside the said ex-parte decree on the ground that they were not served with the summons of the suit. They were not aware of the suit at all and that they came to know about the decree passed in the suit only when the Police of the Tirumalaghiri Police Station stated to them that they shall not interfere with the possession of the plaintiff on 19-2-1991. Then alone, they came to know about the passing of the ex-parte decree and, immediately, they have taken steps to know the nature of the decree and the property with reference to which the suit was decreed. They filed an application for certified copies of the Judgment and decree as well as other documents by a third party affidavit on 20-2-1991. The certified copies were made ready on 27-2-1991 by the Court and the petitioners took delivery of the same on 28-2-1991. On perusal of the certified copies obtained by them, they came to know the fraud played on them. According to the petitioners, no summons were served on them. V. Prabhavathi on whom the summons were stated to have been served, has nothing to do with them. On these allegations, the application, I.A.No. 499/1991 was filed on 25-3-1991.

It is also mentioned by the defendants in the affidavit filed in support of the application that they were not properly described in the suit. The first petitioner is Mr. K.R. Pentaiah S/o Ramaiah while in suit it was stated as "Pentiah S/o Ramulu". The number of the residential address was also wrongly noted. In stead of showing the correct number as 3-19-50, in the plaint it was mentioned as "H.No. 29-1387, Kakathiya Nagar". Likewise, the 2nd petitioner was not also properly described. His surname was not given properly and the residential number is also not properly given. Therefore, the application was filed.

The learned Judge having noticed the fact that summons were not served on the defendants admittedly and that they were not properly described in the plaint, proceeded to decide whether the application was within time. The learned Judge referred to the above mentioned facts and came to the conclusion that the petitioners got the knowledge of the ex-parte decree on 20-2-1991 itself, namely, on the date of the filing of the copy application for the issuance of the certified copies. The application for setting aside ex-parte decree having been filed on 25-3-1991, the learned Judge felt that the application is barred by limitation. The limitation for filing such application is 30 days. On that ground alone, the application was dismissed.

It is contended on behalf of the revision petitioners by Sri Venkataramana, the learned Counsel, that the order of the learned Judge is wholly unsustainable and the limitation starts under Article 123 of the Limitation Act, 1963 from the date of receipt of the certified copy, not from the date of filing of the application for certified copies. In support of the said contention, the learned Counsel cited a decision of the Supreme Court reported in Panna Lal v. Murari Lal, AIR 1967 SC 1384. The learned Judges were dealing with Article 164 of the Old Limitation Act, 1908 (Corresponding provision being Article 123 of the present Limitation Act). The learned Judges, held as follows:-

".... When the summons was not duly served, limitation under Article 164 does not start running against the defendant because he has received some vague information that some decree has been passed against him... The test of the sufficiency is not what the information would mean to a stranger but what it meant to the defendant in the light of his previous dealing with the plaintiff and the facts and circumstances known to him..."

In another decision reported in Bansidhar Lenka Vs. Kumar Barik, , it was clearly mentioned that the limitation commences for filing of an application under Order 9, Rule 13 C.P.C. only from the date of obtaining certified copies of the decree and judgment. The learned Judge having considered this aspect and also after referring to a reported case in Mst. Nagina Devi and Others Vs. Brijnandan Pd. Sinha and Others, clearly stated that the date of knowledge appropriately be attributed in such a case only on receipt of the certified copies by the applicant.

In view of the above judgments, it is clear that, in the present case, the certified copies having been received by the petitioners on 28-2-1991, the knowledge of the passing of the decree can be attributed to the petitioners only as on that date. The limitation commence from the said date. The application under Order 9, Rule 13 C.P.C. filed by the petitioners on 25-3-1991 is within 30 days from the date of receipt of the certified copies of the judgment and decree i.e., on 28-2-1991.

Having regard to the facts and circumstances of the case and the decisions referred to supra, the order of the learned Judge is unsustainable and the ex-parte decree passed on 17-7-1990 is set aside. The revision petition is allowed. The suit, O.S.No. 69/1990, is retsored to file and the learned Judge is directed to proceed with suit, in accordance with Law, on its own merits, after giving an opportunity to all the parties to adduce evidence. No order as to costs.