(1) The appellant was served by publication and beat of drums. He made no appearance and an ex parte order of eviction was passed on 31.5 1974. Warrants of possession were taken out in October 1974 but they were resisted, by the occupants of the suit premises. The occupants were the brothers of the appellant. On 23rd April, 1975 the appellant filed the application dated 19th April, 1975 under Order 9 rule 13 of the Code of Civil Procedure supported by his affidavit for setting aside the order of eviction passed exparte, alleging that on 19th April, 1975 he came to know about the respondents having obtained the order of eviction ex parte against him, that he was never served, that he was not in Delhi when the service is said to have been effected on him. The application was dismissed by the Additional Controller on 3rd July, 1978. The appellant's appeal was also dismissed by the Rent Control Tribunal on 8th January, 1979 holding that the application for setting aside the ex parte order of eviction was barred by time The tribunal however held that proper service on the appellant was not effected. The appellant has filed this second appeal under Section 39 of the Act.
(2) Held The question involved in this second appeal is whether the application for setting aside the order of eviction passed ex parte is within time. Article 123 of the Limitation Act of 19-13 provides a period of 30 days for an application to set aside a decice passed ex parte 'from the date of decree. In cases where the summons was not duly served an application may be filed within 30 days when the applicant had the knowledge of the decree. Explanationn to this Article further provides that substituted service under Order 5 rule 20 of the Code of Civil Procedure shall not be deemed to be due service for purposes of the said Article.
(3) The approach of the Controller and the Tribunal is contrary to law. The period of 30 days is to be counted from the date of knowledge of the appellant-judgment debtor and not of somebody else. Knowledge not of any eviction order but particular eviction order passed against him must be .imputed and proved, from the application under Order 9 rule 13 of the Code of Civil Procedure it is clear that the appellant never had knowledge of the eviction order passed on 31st May, 19 74 Knowledge of the brothers of the appellant cannot be held to be the knowledge of the appellant. There is unrebutted evidence to prove that the appellant came to know about ex parte order of eviction in April, 1975. .The finding of the Tribunal that the appellant came to know in October, 1974 is not based on any evidence but only on conjectures. The respondents-decree-holders neither led any evidence that the appellant had knowledge of the decree at any time prior to April, 1975 nor pleaded to that effect.