Ranglal vs Munjaji and Others

Bilgrami, J.—This petition in revision is directed against an order of the District Judge of Parbhani dated 16-6-1953, allowing the Respondent''s appeal against an order of the Munsif of Parbhani dismissing the Respondent''s application for setting aside an ex parte decree, in a suit for possession of a plot of land filed by the Appellant against him, setting aside die, ex parte decree on the condition that Rs. 50/- costs are paid within a month.

The facts relevant for the purposes of this revision are that the suit was instituted originally in the Munsiff''s Court, Manglegaon; owing to tire reorganization of the Taluqas in that district the case was transferred to the Munsiff''s Court, Parbhani, and the pleaders of the parties were informed and directed to appear in that Court. The Defendant did not make an appearance on the date of hearing and an ex parte decree was passed against him on 31-3-1951. He filed an application to set aside this decree under Order 9, Rule 13.

The reason for delay shown in this application was that ho was lying ill in a village called Ankalgaon, in Pathri Taluqa; this was not known to his vakil, who would not inform him. He learnt that the suit was decreed against him on 10-6-1051 within a month of which he filed the application. The trial Court rejected this application as tine-barred; die first appellate Court held that reasons show are sufficient for condoning the delay.

If in our opinion Section 5, Limitation Act was applicable to this case we should not have interfered in an order passed by the learned District Judge in the exercise of his discretion. But this is not so. Under Article 164, Limitation Act, the period is thirty days. The period of limitation commences if the summons was duly served from the date of the decree, if not from the time the applicant has knowledge of the decree.

The "summons" means in this Article summons for the first hearing. If that has been duly served as in this case the period will commence from the date of the decree regardless of the fact whether the notice of transfer was duly served or not. There are some clear authorities, if authority need be cited at all for an inference so obvious and evident from the wording of the Article. See in this regard - Sham Sunder Kushi Ram v. Devi Ditta Mall AIR 1932 Lah 539(A) and also a recent decision of the Punjab High Court in Sodhi Harnam Singh Vs. Sodai Mohinder Singh, . In both these cases, the question was of the notices of transfer being duly served or not.

It was held that "summons" in the Article means summons issued in the first instance. In view of this", it is unnecessary for us to consider whether die notice of transfer can be considered duly served or not.

The next question is whether the Court had power to condone the delay or not. We are of opinion that since there is no law by virtue of which Section 5, Limitation Act, is made applicable, it cannot apply. Neither the CPC nor Section, 5, Limitation Act, or any other provision in it makes this section applicable to an application for setting aside an ex parte decree. The Court therefore for condoning the delay cannot have recourse to the provisions of that section. Some of the decisions which support our view are as follows: Tara Sankar Ghosh v. Nasaruddin AIR 1916 Cal 651(C) and - Pal Singh v. Harnam Singh AIR 1927 Lah 342(D).

It is also well established that the Courts cannot by exercise of its inherent power extend the period of limitation on any grounds of equity and justice and override the provisions of this Act. See in this regard - Tagadamma Pandit v. Naresh Pandey AIR 1936 Rang 305(E),- AIR 1934 43 (Nagpur) . We are therefore of opinion that the order under revision condoning the delay is erroneous and must be set aside.

In the result, this revision petition is allowed with costs and the order under revision is set aside. The application of the Respondent under Order 9, Rule 13 will stand dismissed.

Palnitkar, C.J.

I agree.