G.K. Misra, J.
1. Title Suit No. 293 of 1962 had been filed in the Court of the Munsif, Bhadrak, for declaration of plaintiff's occupancy right and for other reliefs. Defendant entered appearance on 16-3-1963. From that date till 8-10-1963 defendant went on applying for time for filing of written statement. On the last date the application for time was rejected and the defendant was set ex parte. Ultimately ex parte trial was held on 18-1-1964 and an ex parte decree was passed. On 18-2-1964 defendant filed an application under Order 9 Rule 13 C.P.C. which was registered as Misc. Case No. 44 of 1964. On 20-8-64 the learned Munsif held that there was sufficient cause for non-appearance of the defendant on the date of trial and restored the suit. Against this order the Civil Revision has been filed.
2. Mr. Misra raised two contentions (i) the application under Order 9 Rule 13 C.P.C was barred by limitation by one day and was liable to be dismissed and that this court in exercise of its jurisdiction under Section 115, C.P.C is to set aside the order of restoration and (ii) it is incumbent upon the defendant to establish the sufficient cause from 8-10-1963 when the suit was set ex parte, till 18-1-1964, the date of ex parte trial.
3. The first contention requires careful examination. Section 3(1) of the Limitation Act (Act XXXVI) of 1963 hereinafter referred to as the Act lays down that:
'Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted appeal preferred, and application made after prescribed period shall be dismissed. although limitation has not been set up as defence.'
Under Article 123 of the Act, the period of limitation to set aside a decree passed ex parte is 30 days from the date of the decree, or where summons or notice was not duly served when the applicant had knowledge of the decree. In this case the period of limitation is 30 days from the date of the decree. Admittedly the application for setting aside the ex parte decree was filed one day late. The application was therefore barred by limitation by one day.
Under Section 3(1) of the Act, the Court should have dismissed the application although limitation had not been set up as a defence. This conclusion is supported by a decision of this Court in Ganesh Chandra v. Artatrana Misra AIR 1965 Orissa 17 and of the Supreme Court in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee AIR 1964 SC 1336.
4. The next point for consideration is whether this Court can interfere with the order of restoration under Section 115 C.P.C. The answer to this question is also concluded by the aforesaid two decisions that it can. The order of the trial court dated 20-8-1964 must accordingly be set aside.
5. The only other question for consideration is whether in view of the observations of this Court in Bahadur Pradhani v. Gopal Patel, ILR 1964 Cult. 18 : (AIR 1964 Orissa 134) that an order of restoration should not be interfered with in revision on the broader principle that the restoration itself advances the cause of justice (see para 11), the Civil revision should not be allowed. The principle laid down in that case has, however, no application to this case. If the application itself was barred by limitation, it relates to a question of jurisdiction envisaged under Section 115, C.P.C. and to that extent the exercise of jurisdiction by this court does not become discretionary. The decision does not stand in the way of the petitioner's contention.
6. In view of my aforesaid conclusion, it is necessary to examine the correctness of the second contention advanced by Mr. Misra.
7. In the result, the order dated 20-8-64 passed by the trial Court restoring the suit is set aside and the Civil Revision is allowed. In the circumstances, there will be no order as to costs.