Norman Macleod, Kt., C.J.
1. The present applicants filed suit No. 40 of 1919 in the First Class Subordinate Judge's Court at Dhulia passed by V. 8. Nerurkar, Joint against the present opponent Misrilal Chunilal and another person, against whom afterwards the claim was withdrawn. Summons was served on the opponent on February 10, 1919. He did not appear at the hearing though duly served, and an' ex parte decree was passed against him on April 15, 1919, for Rs. 2,366-8-0. The opponent then filed suit No. 276 of 1919 on July 16, 1919, in the Dhulia Court against the present applicants for a declaration that the ex parts decree obtained by the petitioners against him in suit No. 40 of 1919 was obtained by fraud and misrepresentation, and that he came to know of the decree on July 4, 1919. Two preliminary issues were raised : (1) whether plaintiff (Misrilal) proved that the service of summons on himself as defendant in suit No. 40 of 1919 was effected fraudulently as alleged; (2) if not, then whether plaintiff can be allowed to prove that the decree in suit No. 40 of 1919 was obtained by using fabricated documents and by suppression of evidence. The Court held that a finding on the first issue was not necessary, and on the second it held that the plaintiff could be allowed to prove that the decree in suit No. 40 of 1919 was obtained by using fabricated documents and by suppression of evidence.
2. The Judge then went on to consider whether the decree had been obtained by using fabricated documents and by suppression of evidence, and although he found it was not necessary to find whether the summons was fraudulently served, he did go into that question and concluded that no fraud could be brought home to the present defendant in respect of the sending of the summons to Falodi by registered post. The present plaintiff, after he was served with the summons by registered post, wired to the Court for an adjournment on the ground, as he stated, that there was a marriage ceremony at his house and that further he was engaged in a criminal matter. The Judge further found that there was no fraud or misrepresentation on the part of the present applicants. He then continued :-
If the suit were treated as an application to set aside the ex parte decree, the plaintiff would be entitled to have it set aside. There is, however, no specific prayer to that effect. J, therefore, allow plaintiff an opportunity to say whether he wishes to treat this suit as an application and to be decided accordingly.
3. The present suit was instituted within a month after plaintiff got knowledge of the decree in suit No. 40 of 1919. The plaintiff then applied that the suit should be treated as an application to restore the suit to the file by setting aside the ex parte decree. That was granted and coats were directed to abide the result. That was by itself an extraordinary order to make, because it would mean that if the applicants eventually lost the suit, they would have to pay the costs of their successful defence against the opponent charging them with fraud. But the real question is whether the Judge had jurisdiction to treat the plaint in the suit as an application to set aside an ex parte decree under Order IX. It was never suggested that the opponent, if ho could not substantiate the charge of fraud, had not been served with summons The Court never considered that question, and it had never been raised by the opponent in those proceedings. But the Judge considered the time from which limitation started as the date on which the plaintiff got knowledge of the decree in suit No. 40 of 1919. That was a wrong conclusion, considering the Judge must be taken to have held, in the absence of fraud, that the summons was duly served. He said :-
The present plaintiff actually wired to the Court for an adjournment. This fact shows that the present plaintiff was served with the summons in the suit and accepted the service, and the Court was not misled by any representation on the part of the defendant.
4. Therefore it is clear that limitation started from the date on which the decree was passed. The Judge, therefore, had no jurisdiction to entertain the application after thirty days. This rule must be made absolute and the order of the lower Court discharged with costs throughout on the opponent.