S. Barman, J.
1. The Collector of Balasore, exercising the power of the Chairman of the District Board, Balasore, is the petitioner in this Civil Revision against an order of the learned Additional Subordinate Judge, Balasore, whereby he set aside an ex parts decree and restored Original Suit No. 51 of 1955 on an application under Order 9, Rule 13 Civil Procedure Code in the circumstances hereinafter stated.
2. One Sri Ashutosh Roy (opposite party herein) was the Chairman of the District Board, Balasore. During the time of his office as Chairman he defalcated Rs. 36,000/-. He was charged, convicted and sentenced by the Magistrate to two years rigorous imprisonment and fine of Rs. 1000/-. The Sessions Judge in appeal reduced the sentence to three months' rigorous imprisonment and enhanced the fine to Rs. 3,000/-. On December 9, 1958, the High Court in revision restored the original sentence passed by the Magistrate, namely, two years rigorous imprisonment and a fine of Rs. 1000/-.
2a. In the meantime in 1935 a suit was filed in the Court of the Subordinate Judge at Balasore on behalf of the District Board, Balasore for realisation of the said sum of Rs. 36,000/- found to have been defalcated as aforesaid. The defendants in the suit were Ashutosh Roy, opposite party herein, and another one Baidyanath Rout. On November 20, 1959 the suit was fixed to be heard. On that date Ashutosh Roy was in Keonjhar Jail. He through a lawyer filed a petition for adjournment on the ground that he could not get ready in the suit as he was in jail. The said petition for adjournment was rejected and Ashutosh Roy, defendant No. 1 in the suit, was asked to get ready. Thereupon his lawyer retired from the suit. The following day, November 21, 1959, an ex parte decree was passed for Rs. 36,000/- against Ashutosh Roy, defendant No. 1 in the said suit. Defendant No. 2 Baidyanath Rout, was present and a decree was passed against him for Rs. 1000/-. In March 1960, while he was still in jail, execution was levied on Ashntosh Roy, the judgment-debtor, in execution of the said decree passed against him. On April 4, 1960, Ashutosh Roy was transferred from Keonjhar to Balasore Jail. On December 5, 1960, Ashutosh Roy while in BalasoreJail made an application for setting aside the ex parte decree. Shortly thereafter on January 12, 1961, Ashutosh Roy was released from Balasore Jail. It was on this application that the learned Additional Sub-Judge set aside the ex parte decree which had been passed on November 21, 1959, and restored the said Original Suit No. 51 of 1955. Hence this Civil Revision.
3. The point for consideration is whether imprisonment in jail is a sufficient cause for not making the application to set aside the ex parte decree within the period of limitation. Under Article 164 of the Limitation Act, the period of limitation for an application by the defendant for an order to set aside a decree passed ex parte is thirty days from the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree. In the present case, the decree was passed in the presence of the defendant Ashutosh Roy's lawyer. The defendant Ashutosh Roy admits knowledge of the decree. Therefore, he should have applied under Order 9, Rule 13 within thirty days from the date of knowledge of the decree, that is to say, by December 21, 1959. But it is not until about a year after the expiry of the period of limitation that is December 5, 1960 that Ashutosh Roy made the application for setting aside the ex parte decree. The reasoning on which the learned Additional Subordinate Judge set aside the ex parte decree and restored the suit is this :
'The learned counsel for the opposite party (District Board) has drawn my attention to the fact that the petitioner (Ashutosh Roy) filed haziras on all dates of hearing in this suit before going to Jail, and also to the fact that the petitioner (Ashutosh Roy) filed haziras on the dates of hearing after he went to Jail. But that is not the reason to Imagine that the petitioner (Ashutosh Roy) was in a position to instruct his advocate from the Keonjhar Jail when the suit was fixed for hearing in the Balasore Civil Court. For all these reasons I have no doubt in my mind that the petitioner had sufficient cause for his failure to attend Court when his time petition was rejected and when the suit was decreed ex parte.'
4. It is not the law that the period of imprisonment must always be excluded. The imprisonment of a party may constitute a sufficient cause for excusing delay in preferring an appeal or making an application within the period of limitation. But the mere fact that the party was in jail without anything more is not necessarily a sufficient cause for extending the time. In the present case while in Keonjhar Jail, Ashutosh Roy was appearing through Ms lawyer from day to day and it was on November 20, 1959, that he asked for adjournment which was refused and thereupon his lawyer voluntarily retired from the case. It is not that imprisonment in Jail is always a sufficient ground. It all depends on the facts and circumstances of each case. The Court has to consider whether in jail at the material time the defendant was in any way embarrassed or handicapped in his defence by reason of the jail authorities having not given him proper facilities for giving instructions to his lawyer or otherwise having caused disability to the defence. The apparent intention of the legislature to give all opportunities for defending any proceeding against the defendant in jail is clear from the provisions of 'Order 5, Rules 24 and 29 Civil Procedure Code. Rule 24 provides to the effect that where the defendant is confined in a prison, the summons shall be delivered or sent by post or otherwise to the officer in charge of the prison for service on the defendant. As to the duty of the Officer to whom summons is delivered or sent for service, Rule 29 provides that where a summons is delivered or sent to any person for service under Rule 24, such person shall be bound to serve it if possible, and to return it under his signature, with the written acknowledgment of the defendant, and such signature shall be deemed to be evidence of service. Section 420 Criminal Procedure Code also shows that where the petitioner is in jail every facility such as pen, paper or even a writer is allowed to him to prepare a petition or an appeal (See Nitto Gopal Pandit, In re 13 Suth WR Cr. 69).
5. In the present case the opposite party Ashutosh Roy's excuse, -- that he could not take any steps either for getting ready in the suit or for making an application for setting aside the ex parte decree within time, all, by reason of his imprisonment in Keonjhar Jail -- has no substance in the face of the circumstance that although he was transferred to Balasore Jail as early as April 4, 1960, he did not make the application for setting aside the ex parte decree until December 5, 1960, that is to say, eight months after his transfer to Balasore Jail. This shows that he was never diligent in the matter of his defence to the suit. If he was serious and keen on defending the suit he could have instructed his lawyer who had been looking after the suit' from beginning, to make an appropriate application for setting aside the ex parte decree within time but he (Ashutosh Roy) did not choose to do so. In these circumstances, in my opinion, the reasoning of the learned Additional Subordinate Judge on which he set aside the ex parte decree and restored the suit is not sound. The learned Additional Subordinate Judge in exercise of his jurisdiction acted illegally and with material irregularity in setting aside the ex parte decree and restoring the suit.
6. In the result, therefore, the said order ofthe learned Additional Subordinate Judge is setaside. This Civil Revision is accordingly allowedbut without costs as the opposite party did notappear herein.