1. An interesting point, which does not seem to have been covered by a decision of any High Court so far, arises on this appeal. The respondents filed a summary suit against the appellants on the 1st July 1955 and the summons was served on 1st September 1955. The appellants failed to file an appearance and a decree was passed on 16th September 1955. The decree was sealed on 17th November 1955 and a copy of the decree was served upon the appellants on 24th November 1955. On 3rd December 1955 the appellants took out a notice of motion to set aside the decree and Mr. Justice Coyajee dismissed that motion taking the view that the notice of motion was barred by limitation.
2. Now, if limitation begins to run from the date of the decree, viz., 16th September 1955, and Art. 164 of the Limitation Act applies, then prima facie the notice of motion is barred by limitation. Mr. Gauba wanted to argue that limitation begins to run not from 16thSeptember 1955 when the decree was passed, but from 17th November 1955 when the decree became effective by its being sealed. But in our opinion it is unnecessary to consider that aspect of the matter because Mr. Gauba is on much stronger ground when he takes up the contention that Article 164 does not apply to the notice of motion taken out by his clients. Article 164 only applies when there is an ex parte decree or order and an application is made to set aside such an order or a decree, and the question that we have to consider is whether looking to the provisions contained in the Code with regard to a summary suit it could be said that the present decree which is challenged was an ex parte decree. Order 37 deals with summary suits. It is a self-contained Order which lays down the procedure for dealing with summary suits, and although Rule 7 provides that the procedure in suits under this Order shall be the same as the procedure in suits instituted in the ordinary manner, that is, subject to the provisions contained in Order 37. Rule 2 (2) of Order 37 provides:
'In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be en-titled to a decree.'
Rule 3 provides for the Court giving leave to the defendant to appear it sufficient cause is shown by the defendant; and Rule 4 gives power to the Court to set aside the decree passed under this Chapter if there are special circumstances. When we turn to Order 9, Rule 6 which provides for ex parte decree, the provision applies where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, and Mr. Gupte's submission before us was that it will apply whatever may be the reason for the defendant not appearing, if in fact he did not appear and a decree was passed in his absence. It seems to us that in order that Order 9, Rule 6 should apply there must be negligence or default on the part of the defendant resulting in his not appearing at the hearing. But Order 9, Rule 6 does not and cannot contemplate a case where the defendant doss not appear because in law he cannot appear and where the law bars him from appearing. The idea underlying Order 9, Rule 6 is that the defendant could appear but in fact has not appeared. But when the defendant could not appear at all, when however anxious he might be to appear he was precluded from appearing by law, it could not be said in the language of Order 9, Rule 6 (1) that the defendant did not appear. It will be noticed that under Order 9, Rule 7 if an ex parte hearing of a suit is adjourned and if the defendant appears at the adjourned hearing and assigns good cause for his previous non-appearance, it is open to the Court to permit him to be heard in answer to the suit as if he had appeared on the day fixed for hisappearance. Now, surely, the Court cannot do this it the Court is dealing with a summary suit. The Court has no power, if leave is not given to the defendant, to hear him either on the date fixed for the hearing or on any adjourned date of the hearing. Again, when. we look at Order 9, Rule 13, it provides for an application for setting aside an ex parte decree, and the two grounds on which an ex parte decree can be set aside are that the summons was not duly served or that he was prevented by any sufficient cause from appearing. Whatever the position may be with regard to the first ground, clearly the second ground would not apply it the defendant against whom a decree has been passed in a summary suit applied to set aside that decree. He could not urge that he was prevented from defending the suit because his mouth was shut, as it were, by law and he could not put forward his defence. But for the provisions of Order 37 that would be as good a sufficient cause as any other, but that sufficient cause is denied to the defendant in a summary suit. Therefore, looking to the provisions of Order 9, Rule 6, it seems to us clear that those provisions do not apply to a decree passed in a summary suit and that an application to set aside a decree in a summary suit is not regulated by Order 9, Rule 13 but by Order 37, Rule 4. In other words, Order 37, Rule 4 is a self-contained Order which deals not only with the right of the defendant to appear in a summary suit in which a decree has to be passed if leave to defend is not given to him, but also ivith the procedure to be followed if the defendant wishes to have a decree passed in a summary suit set aside.
3. It is then urged by Mr. Gupte that even assuming the present application of the appellant does not fall under Order 9, Rule 13 and even assuming that no ex-parte decree was passed as contemplated by Order 9, Rule 6, Article 164 does not in terms limit the application covered by that article to an application made under Order 9, Rule 13, and Mr. Gupte says that although the decree that we have before us may not be an ex parte decree within the meaning of Order 9, Rule 6 it is still an ex parte decree as generally understood and there is no reason why the connotation of an ex parte decree in Article 164 be restricted and limited to an ex parte decree as understood by Order 9, Rule 6. Now that seems to be a little more difficult contention to decide. It is true that in one sense the decree was passed against the defendant in his absence, but that absence was an enforced absence and it was enforced by law. In our opinion, even giving to the expression 'ex parte' its plain natural meaning, the expression 'ex parte' does carry with it the connotation that a Court or a Judge or a Tribunal has proceeded in the absence of other party when it could have had the other party before it or when it was not prevented by law from having the other party before it. But perhaps it is better to decide this point on the other aspect of the matter. Both the Law of Limitation and the Civil Procedure Code are procedural laws and we must try and give the same meaning to expressions usedin these two laws. If the Civil Procedure Codehas understood an ex parte decree in the particular definite sense, there is no reason why we should take the view that the Limitation Act has understood it in a different sense. Apart from that, the Limitation Act must always be construed strictly against the party who sets up the plea of limitation. The Limitation Act deprives a party of a valuable right and unless the provision in the Limitation Act was clear and beyond doubt, a benevolent construction, a construction favourable to the party whose valuable right is being taken away, must always be given and therefore in our opinion Article 164 does not apply to an application made by a defendant against whom a decree has been passed in a summary suit when he was precluded from appearing by reason of the fact that leave to defend was not given. In our opinion, such an application falls under Order 37, Rule 4 and the Limitation Act has not dealt with any such application. Therefore, the article that would apply would be the residuary Article 181.
4. Before we part with this case, perhaps in fairness to Mr. Gupte we must refer to his contention that we are concerned here with the High Court Rules and not with the Civil Procedure Code. We have looked at the relevant Rules and in our opinion there is no substantial difference between the provisions of Order 37 and the Rules framed by us on the Original Side. There is undoubtedly a procedural difference, but in substance the position under the Code and under the High Court Rules is the same, viz., that unless leave to defend is given to a defendant in a summary suit he has no right to appear and defend the suit. In this particular case the notice of motion itself requires the ex parte decree to be set aside but after all that is merely a misdescription of the decree that was passed and that description cannot alter the right that the defendant may have to proceed under Order 37, Rule 4. The learned Judge decided this motion only on the question of limitation. As we have taken the view that the notice of motion is not barred, we will set aside the order and send the matter back to the learned Judge to dispose of the motion on merits.
5. Costs of the appeal costs in the notice of motion.
6. Case remanded.