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Bapurao Sakharam Karmarkar Vs. Sadhu Bhivba Gholap - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberCivil Extraordinary Application No. 57 of 1922
Judge
Reported inAIR1923Bom193; (1923)25BOMLR74
AppellantBapurao Sakharam Karmarkar
RespondentSadhu Bhivba Gholap
Excerpt:
indian limitation act (ix of 1908) article 164 - ex parte decree-knowledge of the decree. ;to attract the applicability of article 164 of the indian limitation act 1908 the defendant must have knowledge not merely that a decree bag 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 partioular person for a particular sum. - .....judge was wrong in refusing to entertain the applicant's petition for setting aside the ex parte decree passed against him. under article 164 of the indian limitation act the defendant had thirty days from the date of the decree, or where the summons was not duly served, when the applicant had knowledge of the decree. the petitioner alleges that the summons had not been duly served, and that he had no knowledge of the decree until execution was levied against him. the plaintiff's reply was that the defendant had knowledge of the decree because he (the plaintiff) had asked two persons to tell him about the decree and asked him to settle. those two persons were examined on commission. we do not think that their evidence is sufficient to impose knowledge of the decree on the defendant.....
Judgment:

Norman Macleod, Kt., C.J.

1. We think that the learned Judge was wrong in refusing to entertain the applicant's petition for setting aside the ex parte decree passed against him. Under Article 164 of the Indian Limitation Act the defendant had thirty days from the date of the decree, or where the summons was not duly served, when the applicant had knowledge of the decree. The petitioner alleges that the summons had not been duly served, and that he had no knowledge of the decree until execution was levied against him. The plaintiff's reply was that the defendant had knowledge of the decree because he (the plaintiff) had asked two persons to tell him about the decree and asked him to settle. Those two persons were examined on commission. We do not think that their evidence is sufficient to impose knowledge of the decree on the defendant within the meaning of Article 164. 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. A judgment-debtor is not in such a favourable position as he used to be when he had thirty days from the time when execution was levied against him. But we do not think that the Legislature meant to go to the other extreme by laying down that time began to run from the time the judgment-debtor might have received some vague information that a decree had been passed against him. We think, therefore, that the rule must be made absolute and the Judge should now decide the application to set aside the ex parte decree on its merits. Costs will be costs in the application.


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