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Qabul Singh Vs. Jai Prakash - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All503
AppellantQabul Singh
RespondentJai Prakash
Excerpt:
- - 2. learned counsel states that his client has filed an affidavit in which it is alleged that he did not receive knowledge of the decree, until 28th may 1936. if this statement be true then the application for restoration was clearly within time......the applicant in his absence and without his knowledge. the application for restoration, the learned judge in the small cause court has held to be time-barred, inasmuch as it was not presented within 30 days of the decree. the learned judge has proceeded upon the assumption that the 30 days must in all circumstances run from the date of the decree. under article 164, limitation act, time begins to runeither from the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree.2. learned counsel states that his client has filed an affidavit in which it is alleged that he did not receive knowledge of the decree, until 28th may 1936. if this statement be true then the application for restoration was clearly within time. the learned judge.....
Judgment:
ORDER

Thom, C.J.

1. This is an application in civil revision under Section 25, Small Cause Courts Act. The application is directed against an order dismissing an application for restoration, and decree passed against the applicant in his absence and without his knowledge. The application for restoration, the learned Judge in the Small Cause Court has held to be time-barred, inasmuch as it was not presented within 30 days of the decree. The learned Judge has proceeded upon the assumption that the 30 days must in all circumstances run from the date of the decree. Under Article 164, Limitation Act, time begins to run

either from the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree.

2. Learned Counsel states that his client has filed an affidavit in which it is alleged that he did not receive knowledge of the decree, until 28th May 1936. If this statement be true then the application for restoration was clearly within time. The learned Judge has not considered the affidavit referred to in the course of his judgment. The application itself was presented on 29th May. The security however was not deposited until 2nd June. In law therefore it must be taken that the application was presented on 2nd June. In the result the application is allowed. The order of the lower Court is set aside. The case will be returned to that Court with the direction that it should be disposed of according to law.

3. Since dictating the above my attention has been drawn to the decision of a learned Single Judge of this Court in Murari Lal v. Mohammad Yasin : AIR1939All46 . In that case the learned Judge held that the provisions of Section 17, Small Cause Courts Act as amended by Act 9 of 1935, were mandatory and that it was incumbent upon an applicant presenting an application praying for the setting aside of an ex parte decree to have, prior to the presentation of that application, filed an application praying security be accepted for the performance of the decree or compliance with the judgment. In my opinion the interpretation put upon the amended Section by the learned Single Judge is too narrow. Prior to the amendment there appeared to have been some doubt as to whether it was within the competency of the Court to-extend the time within which the complete application for the setting aside of an ex parte decree might be made; in other words, as to whether the Court could entertain an application for the setting aside of an ex parte decree where the security was, in fact, furnished after the lapse of 30 days from the date of the decree or the date of knowledge of the decree. In my judgment provided the application is made and the security is furnished within the 30 days there is substantial compliance with the provisions of Section 17 as amended.


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