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Dula Ganda and ors. Vs. Senapati Ganda and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 194 of 1969
Judge
Reported in37(1971)CLT318
ActsLimitation Act, 1963 - Schedule - Article 123
AppellantDula Ganda and ors.
RespondentSenapati Ganda and anr.
Appellant AdvocateS.C. Mohapatra, Adv. for ;U.S. Misra, Adv.
Respondent AdvocateG. Rath, Adv.
Excerpt:
.....lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the ex parte decree having beenpassed in early part of last jyestha it can well be said that the petitioners were aware of the ex parte decree soon after it was passed and therefore they should have come up with this application for restoration at the latest by the end of asadha 1966.'in appeal the trial court judgment was confirmed and against the confirming order dismissing the application for restoration this civil revision has been filed. if summons had been duly served, then clearly the application was barred by limitation as the decree was passed on 6-5-1966 and the application under order 9, rule 13, c p. i am satisfied that the application was filed within thirty days from the date of..........their advocate who on inspection of records on 6th of july, 1966 came to find that the ex parte decree had been passed on 6th of may. 1966. a miscellaneous case was registered in which dull ganda (defendant no 1) was examined as a witness and two other witnesses were examined who corroborated his testimony that they came to know of the ex parte decree when the plaintiffs trespassed upon the disputed land on 28th of june, 1966. the learned munsif rejected the application for setting aside the ex parte decree relying on the statement of defendant no. 1 to the following effect:--'after coming to know about this ex parte decree i myself and my brothers came to lawyer chamra babu in last jyestha. the ex parte decree having beenpassed in early part of last jyestha it can well be said.....
Judgment:
ORDER

G.K. Misra, C.J.

1. In Title Suit No. 34 of1965 the plaintiffs asked for declaration of title and rectification of the record-of-rights alleged to have been wrongly made in the name of the defendants. An 'ex parte decree was passed on 6th of May, 1966. The defendants filed an application for restoration of the suit under Order 9, Rule 13, C. P. on 7th of July,1966 alleging that the plaintiffs trespassed upon the land on 28th of June, 1966 after declaraing that they had obtained an ex parte dercee. The defendants approached their Advocate who on inspection of records on 6th of July, 1966 came to find that the ex parte decree had been passed on 6th of May. 1966. A miscellaneous case was registered in which Dull Ganda (defendant No 1) was examined as a witness and two other witnesses were examined who corroborated his testimony that they came to know of the ex parte decree when the plaintiffs trespassed upon the disputed land on 28th of June, 1966. The learned Munsif rejected the application for setting aside the ex parte decree relying on the statement of defendant No. 1 to the following effect:--

'After coming to know about this ex parte decree I myself and my brothers came to lawyer Chamra Babu in last Jyestha. The ex parte decree having beenpassed in early part of last Jyestha it can well be said that the petitioners were aware of the ex parte decree soon after it was passed and therefore they should have come up with this application for restoration at the latest by the end of Asadha 1966.'

In appeal the trial Court judgment was confirmed and against the confirming order dismissing the application for restoration this civil revision has been filed.

2. Under Article 123 of the Limitation Act, 1-963 (Act 36 of 1963), to set aside a decree passed ex parte the period of limitation is thirty days from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.

3. Where the question of limitation is involved, the Courts below in the first instance should have directed their attention to the fact whether summons had not been duly served in this case. If summons had been duly served, then clearly the application was barred by limitation as the decree was passed on 6-5-1966 and the application under Order 9, Rule 13, C P. C. was filed on 7-7-1966. It is somewhat remarkable that this aspect of the matter escaped the notice of both the Courts below.

4. Both the Courts below have concentrated on the question whether the application for restoration was filed within thirty days from the date of knowledge. According to the assertion of the petitioners the date of knowledge was 6-7-1966 when on inspection the Advocate came to know that an ex parte decree had been passed. The learned Courts below did not accept this assertion relying on the statement of defendant No. 1 which has already been extracted. That statement does not give an unequivocal admission that the date of knowledge was beyond thirty days from the date of filing the application. On the contrary, the Courts below committed an error of record in saying that the ex parte decree was passed in the early part of Jyestha. With reference to the almanac of the year 1966 it appears that 1st of Jyestha fell on 22nd of May, 1966 and that month expired on 21st of June, 1966. Even if the petitioners knew about the ex parte decree 21 days before the alleged date of dispossession, that is, on 28-6-1966, the application is within time. At any rate, civil rights of parties cannot be bartered away by such speculative inferences when the plaintiffs did not choose to examine themselves to state on oath the exact date of knowledge. To bind down the defendants by their own admission, the admission must be clear and unequivocal I find nothing in the statement of, defendant No. 1 to show that the date ofknowledge was beyond thirty days from the date of filing of the application. At any rate the parties are Harijans and their statements should not be construed mathematically. I am satisfied that the application was filed within thirty days from the date of knowledge.

5. The aforesaid finding however does not dispose of the crux of the matter. Without a further finding that no summons was served on the defendants, the second part of Article 123 of the Limitation Act has no application. If summons had been served the period of limitation would be thirty days from the date of the decree. For this purpose it would have been necessary to remand the case to the Trial Court. But as the parties have been harassed by coming right up to the High Court it would be inexpedient to send the case back on remand. I would proceed on the assumption that the plaintiffs never assailed the stand that summons had not been served and it is on that assumption that both the Courts below proceeded to examine if the limitation was with reference to the second part of the Article.

6. In the result, the judgments of the Courts below are set aside and the suit is restored to file. The civil revision is allowed. As a condition precedent the defendants would, however, pay Rupees 100/- to Mr. Rath, the plaintiffs Advocate, by 1st April, 71 failing which the civil revision would stand dismissed without further reference to the Bench.


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