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Balaram Tripathy and ors. Vs. Hemalata Dibya and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 32 of 1967
Judge
Reported inAIR1969Ori196; 35(1969)CLT388
ActsLimitation Act, 1963 - Schedule - Article 123; Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantBalaram Tripathy and ors.
RespondentHemalata Dibya and ors.
Appellant AdvocateL.K. Dasgupta and ;G.N. Sengupta, Advs.
Respondent AdvocateR.N. Misra, ;R.C. Patnaik and ;D. Satpathy, Advs.
DispositionPetition dismissed
Excerpt:
.....sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - we were set ex parte in that suit and the suit was compromised between the plaintiff and other defendants in our absence'.the aforesaid passage clearly establishes that defendant no. is clearly barred by time under article 123 of the limitation act, 1963 which lays down that the period of limitation is 30 days, to set aside a decree passed ex parte, from the date of the decree or where the summons or notice was not duly served, when the applicant..........defendants 8 to 12 filed an application under order 9, rule 13, c. p. c. for setting aside the ex parte decree. the application was allowed and the ex parte decree was set aside on 19-1-67. against this order setting aside the ex parte decree, the civil revision has been filed by defendants 2 to 7. 2. the learned subordinate judge held that summonses were not served on defendants 8 to 12 and that thev had knowledge of the decree on 4-8-65. on the findings that there was sufficient cause for their absence and the application for restoration was not barred by limitation, the ex parte decree was set aside. 3. mr. dasgupta assails the order of the lower court on the sole ground that the application for restoration was barred by limitation. according to him, 4-8-65, taken as the date of the.....
Judgment:
ORDER

G.K. Misra, J.

1. Title Suit No. 48 of 1956 in the Court of the Second Additional Subordinate Judge, Cuttack, was decreed on 21-12-61 on compromise between the plaintiff and defendants 1 to 7 and ex parte against defendants 8 to 12. On 17-8-65, defendants 8 to 12 filed an application under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree. The application was allowed and the ex parte decree was set aside on 19-1-67. Against this order setting aside the ex parte decree, the Civil Revision has been filed by defendants 2 to 7.

2. The learned Subordinate Judge held that summonses were not served on defendants 8 to 12 and that thev had knowledge of the decree on 4-8-65. On the findings that there was sufficient cause for their absence and the application for restoration was not barred by limitation, the ex parte decree was set aside.

3. Mr. Dasgupta assails the order of the lower Court on the sole ground that the application for restoration was barred by limitation. According to him, 4-8-65, taken as the date of the knowledge was an error of record. Mr. Dasgupta is correct in saying that 4-8-65 was an error of record. Sunamani Tripathy, defendant No. 9. was examined for the first time on 15-5-65 in an estate abolition case. His deposition is Ext. D. On that day he made the following statement:--

'Hemalata, wife of Nityananda, filed one partition suit No. 48/56 in the Court of Sub-Judge, Cuttack and in that suit the disputed land was not included. We, the petitioners were made defendants in that suit and the summons together with the plaint served upon us did not disclose that property in the suit. We were set ex parte in that suit and the suit was compromised between the plaintiff and other defendants in our absence'.

The aforesaid passage clearly establishes that defendant No. 9 had knowledge at least on 15-5-65 that an ex parte decree was passed against defendants 2 to 12 in the aforesaid partition suit. If the application for restoration was filed on 17-8-65, so far as defendant No. 9 is concerned the application for restoration under Order 9, Rule 13 C. P. C. is clearly barred by time under Article 123 of the Limitation Act, 1963 which lays down that the period of limitation is 30 days, to set aside a decree passed ex parte, from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. In this case the finding is that summons had not been duly served. Therefore, the second clause will apply. Defendant No. 9 had knowledge of the decree on 15-5-65 and his application is barred by time.

4. The question for consideration however is whether defendants 8 and 10 to 12 would be fixed with knowledge of the decree by the aforesaid statement of defendant No. 9. Defendant No. 9 does not make a statement that defendants 8 to 12 including himself had knowledge of the decree on 15-5-65. Mr. Dasgupta accordingly places reliance on Ext. A. an order-sheet of the Assistant Settlement Officer wherein the compromise petition dated 21-12-61 had been filed and the order-sheet had been signed by some of these defendants. Whether the aforesaid facts would fix the other defendants with knowledge is not necessary to be examined. It would be sufficient to say that even defendants 11 and 12 did not sign the order-sheet. Assuming therefore, that defendants 8 and 10 would be fixed with knowledge, defendants 11 and 12 cannot be fixed with such knowledge of the decree. The result of the aforesaid discussion is that defendants 11 and 12 can in no circumstances be fixed with knowledge of the decree beyond 30 days from 17-8-65.

6. On the aforesaid conclusion, the question arises whether defendants 11 and 12 can successfully file an application for setting aside the ex parte decree despite the knowledge of such decree, beyond the period of limitation ascribed to defendants 8, 9 and 10. The answer is supplied by the first proviso to Order 9, Rule 13, C. P. C. which lays down:

'Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also''.

The case of defendants 8 to 12 is one and indivisible. If the ex parte decree is liable to be set aside at the instance of defendants, 11 and 12, necessarily the decree passed against defendants 8 and (to-sic) 12 who might be ascribed with the knowledge of the decree beyond the period of limitation must be set aside under the proviso.

6. Towards the close of the dictation, Mr. Dasgupta, raises a further question of fact that in the misc. case under Order 9, Rule 13, C. P. C. only defendant No. 8 has pledged his oath. Defendants 11 and 12 have not come to the box. Defendant No. 8 has pledged his oath in support of a case what defendants 8 to 12 had no knowledge of the decree. From his evidence nothing has been elicited that defen-dants 11 and 12 had knowledge of the decree earlier than 17-8-65. There is, therefore, no substance in the contention that the Court is to record a finding on this ground that all the defendants had knowledge beyond 30 days from 17-8-65.

7. On the aforesaid analysis, there is no merit in this revision. It is accordingly dismissed. But in the circumstances there will be no order as to costs.


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