Lawrence Jenkins, K.C.I.E., C.J.
1. This is an application to us in revision, under the following circumstances. A decree was passed ex parts against the applicant who is a defendant in the suit.
2. He applied to have that judgment set aside.
3. His application was refused in the first instance by the learned third Judge of the Presidency Small Cause Court and that decision was affirmed by the Pull Court.
4. The ground on which the Court declined to set aside the ex parte decree was that in effect it had no jurisdiction to do so inasmuch as the application was beyond time. This view was founded on Article 164 in the Second Schedule to the Indian Limitation Act.
5. In order to uphold this decision we must see whether thirty days had run from the date of executing any process for enforcing the judgment. The suggestion is that there was execution of a process for enforcing judgment on the. 5th of October inasmuch as on that day by the operation of Section 490 it became unnecessary to re-attach the property which had been attached before judgment.
6. We cannot see how the effect of Section 490 can be that there was execution of process for enforcing judgment on the 5th October.
7. It is true that an oral application was made on the 5th October, but we are told (and we take it to be the case) that this application was merely for confirming the attachment. That was an application not warranted by any provision of the law and of no effect.
8. It is conceded that if what occurred on the 5th of October cannot be relied on by the opponent-plaintiff, then Article 164 does not place any obstacle in the way of the applicant-defendant's contention.
9. Holding as we do that Article 164 creates no bar in the way of the application to set aside the judgment, we are of opinion that the case falls within the scope of Section 622, inasmuch as the Court by an erroneous view of that Article failed to exercise the jurisdiction that was vested in it.
10. We must, therefore, make the rule absolute and send back the case in order that the application for an order to set aside judgment exparte may be again heard by the learned Judge of the Small Cause Court.
11. Costs of this rule will be costs in the suit.