Sudhir Kumar Ghosh vs Gobinda Lal Banerjee

G.K. Mitter, J.—This is an application for setting aside a decree passed ex -parte on June 12, 1953. The Petition herein was affirmed on January 31, 1957, and the grounds stated therein are: (a) that before December 26, 1956, when he received a notice to appear before the Master of this Court on January 15, 1957, to show cause why the decree passed against him should not be executed, he did not know anything about the institution of the suit or of the ex- parte decree, (b) that the writ of summons in the suit was never served on him and as a matter of fact he was serving out a term of imprisonment in Pakistan when the decree was passed against him. I have no reason to doubt the genuineness of the statement that the applicant had no knowledge at any time prior to December 26, 1956, that a suit had been filed against him or that a decree had been obtained against him. In Paragraph 2 of the Petition, to quote the Petitioner''s own words, it was "on December 26, 1956, when he for the first time came to know about the institution of the suit and of the ex- parte decree."

The application was not moved before the Court at any time Within 30 days from December 26, 1956, and Mr. Ganguly, Learned Counsel appearing for the Respondent pointed this fact at the first hearing of the application and contended that the application was barred by Article 164 of the Limitation Act. The Learned Advocate appearing on behalf of the Applicant said that in spite of the averments made in Paragraph 2 of the petition it was not till some time afterwards that the Applicant had come to have full details of the decree and therefore the application was made within the period mentioned in Article 164 of the Limitation Act. I gave the Applicant an opportunity of affirming a further affidavit to show exactly when the had knowledge of the decree within the meaning of this Article and by a supplementary affidavit, dated March, 21, 1957, the applicant put on record that "from the enquiries made by lawyers and inspection of the records in the High Court the Applicant came to know on January 4, 1957, that this decree was passed in favour of the Plaintiff herein for the sum of Rs. 3,308-12 with interest and costs as of an Undefended suit." It is claimed that properly speaking the Applicant should be taken to have had knowledge of the decree only on January 4, 1957, and if that date is taken as the terminus a quo for the purpose of limitation the application is not barred. In support of this contention reliance was placed on a judgment of the Bombay High Court in the case of Bapurao Sitaram Karmakar v. Sadbu Bhiva, Gholap, I.L.R.(1922) 47 Bom. 485. There the Plaintiff sought to rely on the fact that the Defendant had knowledge of the decree because the Plaintiff had asked two persons to tell him about the decree and to settle the matter. The judgment of Macleod, C.J., shows that these two persons were examined on commission, but His Lordship was not satisfied on the evidence that there was sufficient material before the Court to impute knowledge of the decree on the Defendant within the meaning of Article 164. The observation of the learned Chief Justice on which particular reliance is placed appears at p. 487 of the report reading:

We think the words of the Article mean something more than mere knowledge that a decree had been passed in some suit in some Court against the Applicant.

We think it means that the Applicant must have knowledge not merely that a decree has been passed by some Court against him, but that a particular decree has been passed against him in a particular Court in favour of a particular person for a particular sum.

The ground put forward before me is that the notice which was served on the Applicant in this case did not mention the particular sum for which the decree was passed nor the name of the judge who presided over the Court which passed the decree, and as such his knowledge of the decree on December 26, 1956, was incomplete and the Court should proceed on the basis that he had knowledge of the decree within the meaning of Article 164 of the Limitation Act only on January 4, 1957, after the inspection of documents and searches of the records mentioned.

The judgment of Macleod, C.J., has been followed in other cases, viz., in Kedar Nath Singh Vs. Kesri Mull and Others, . The relevant paragraph occurring at p. 19 of the report reads:

The question whether the knowledge which an Applicant had on a particular date can be said to be a knowledge of the decree is a question of fact.

In Kumud Nath Roy Chowdhury v. Jotindra Nath Chowdhury ILR (1911) 38 Cal. 394, Mookerjee, J., observed at p. 403:

The term knowledge in Article 164 of the Limitation Act of 1908 means a certain and clear perception of a fact, the fact being the decree in the suit; the expression "knowledge of the decree" means knowledge not of a decree but of the particular decree which is sought to be set aside.

In this case, the Applicant derived his knowledge of the decree according to the Respondent on the service of the notice issued by this Court on December 13, 1956, such service actually taking place on December 26. The copy of the notice which was handed over to me by the learned Advocate for the Applicant shows that the number of the suit and the year of its institution are given therein as also the names of the parties with their addresses, the notice being addressed to the Respondent in the following words "Take notice that you are hereby required under Rule 22 Sub-rule 1(a) of Order 21 of the CPC to appear in person or by Advocate or Attorney of this Court before the Master sitting in Chambers on January 15, 1957, at 10-30 O''clock in the afternoon to show cause why the decree passed against you on June 12, 1953, in the above suit should not be executed against you." This document also shows that the decree was passed by this Court in the exercise of its Ordinary Original Civil Jurisdiction.

I am not at all impressed by the argument advanced on behalf of the Applicant that the name of the Judge trying the suit is not given in the notice nor of the amount for which the decree was passed. Here the Applicant is not concerned with challenging the decree on its merits as to whether it is based on proper pleadings and legal evidence but with showing that as he had not been served with the writ of summons it must be set aside on that ground alone. Where the decree is for specific performance of an agreement or is a merely declaratory decree no sum can be mentioned as the decretal amount. What the Applicant should he made fairly aware of is that a decree had been passed against him in a particular court so that if he was minded to acquire any further information on the subject he could, without much difficulty, do so through proper channels, It does not matter, in my opinion, that the Applicant is informed whether a decree is for Rs. 1,000 or Rs. 10,000 or whether the decree was for specific performance of a contract or one for damages for malicious prosecution. Once he acquires knowledge of a decree having been passed against him and in favour of a particular person by a certain court he must be diligent enough to procure such particulars of it as will enable him to make an application for setting it aside within 30 days from such knowledge. The legislature did not intend that he should be taken to have had knowledge of the decree only when he secures a certified copy of the decree or is shown the original decree with the seal of the court on it. My attention was drawn to the judgment delivered by Beman J. in the case of Abdool Hoosein Essufally Vs. Esmailji Abdool Hoosein, . There His Lordship observed: (see at p. 465):

Defendant No. 3 received the notice of this Court in the ordinary form apprising her of the number and date of the decree and I find it impossible to hold that, from the moment of the receipt of such notice the recipient had no knowledge of the decree within the meaning and intention of Article 164. I understand the words there used to mean no more than knowledge of the fact that a decree of the kind is in existence. I do not understand that they can be extended one inch further so as to let in the possibility of embracing knowledge of the contents and general facts of the decree. If I were to adopt the view which the Defendant No. 3 has pressed upon me *** it would be open to every person, who received notice in however solemn a form of the existence of a decree, to reply that he was not aware of the particulars and details and that, therefore, time could not be made to run against him until he had made enquiries ample enough to satisfy himself upon all these points.

With the above observations I respectfully agree.

After all, the question as to whether a person has knowledge of a decree or not is a matter within his peculiar knowledge. It is for him to satisfy the Court that on a particular day he received knowledge of the decree in a certain manner. In the Petition filed the case of the Applicant clearly is that he acquired knowledge of the decree on December 26, 1956. It was only when he found that he was in an inconvenient position by reason of the assertion there made that he tried to wriggle out of the situation by filing a supplementary affidavit. The supplementary affidavit, in my opinion, does not improve the case of the Petitioner in any way.

The question as to whether a person can be said to have knowledge of the decree, as has already been observed in the cases noted by me, is a question of fact and as soon as it can be shown that the Applicant knew that a decree had been passed against him and in favour of a particular person in a particular court he would be getting sufficient notice of the decree in order to make the period of limitation run against him as prescribed under Article 164 of the Limitation Act. In view of the above, the application must be dismissed with costs.

The learned Advocate for the Applicant states that her client is ready and willing to furnish security and prefer an appeal from the order made by me. I shall stay execution of the decree for a fortnight from date on condition that the Applicant furnishes security for the sum of its. 3,300 to the satisfaction of the Registrar of this Court within that period.