Jagat Narayan, C.J.
1. This is a revision application by the plaintiffs against an order of the Additional Munsif No. 3, Kota, setting aside an ex parte decree passed by him on 25-8-70 on an application of the defendant filed on 20-11-70.
2. The plaintiffs instituted a suit for the recovery of Rs. 1,160/- in in the court of Munsif, Kota on 18-7-69. Summons was duly served on the defendant who appeared on 25-9-69 But later on absented himself and an ex parte order was passed against him on 22-4-70. 29-7-70 was fixed for recording ex parte evidence of the plaintiffs by the Munsif Kota.
3. Before that date the suit was transferred to the court of Additional Munsif No. 3, Kota, on 16-5-70. The plaintiffs appeared on 29-7-70 in the Court of the Additional Munsif No. 3, Kota but their evidence was not recorded and the case was adjourned. Finally, an ex parte decree was passed against the defendant on 25-8-70 by the Additional Munsif No. 3, Kota.
4. On 20-11-70 the defendant filed an application under Order 9 Rule 13, Civil P.C. for setting asides the ex parte decree. He alleged that he game to have knowledge about the decree only on 17-11-70 when his property was attached in execution of the decree by the Nazir and contended that his application was within limitation. This contention was accepted by the learned Additional Munsif and the following order was passed:
Hence the applicant's application is allowed and ex parte decree and judgment are sat aside. The applicant will pay Rs. 20/- as costs to the non applicant. Pronounced.
5. In the order sheet, however, it was written that the suit was restored on payment of Rs. 20/- as costs. It was also mentioned in the order sheet that costs were paid to the lawyer of the plaintiffs on that very day. The order sheet was not signed by the learned Additional Munsif.
6. The reasoning given by learned Additional Munsif was that notice should have been served on the defendant before proceeding with the hearing of the case by the Additional Munsif No. 3. Kota after the case had been transferred to his Court. This argument is erroneous in my opinion. Once the summons of the suit is served on the defendant it is his duty to find out to which court the case has been transferred on administrative ground and what date has been fixed in it.
7. It was held in Devichand v. Rikhabchand 1956 RLW 202 that 'where the High Court transfers a proceeding on its own motion, it is not necessary for the High Court to give notice to parties'. The same is applicable to an order of transfer passed by the District Judge on administrative grounds.
8. In Badri Narayan Sharma v. Panchayat Samiti, Dhariawad 1972 RLW 475 it was held 'the consensus of the judicial opinion is that 'the 'summons' referred to in third column of Article 123 refers to the summons to be served on the defendant for the first hearing or the suit, namely, the first summons served in the suit for settlement of issues.' It was also held that the court has no inherent power to set aside an ex parte decree, as there is express provision in the Code of Civil Procedure and the Limitation Act about this matter. In that case the plaintiff filed a suit against the defendant valued at Rs. 2,822/-in the Court of Civil Judge, Udaipur. The pecuniary jurisdiction of Munsifs at that time extended only upto Rs. 2,000/-. Summons was duly served on the defendant, issues were framed and the evidence of the plaintiff was recorded in part by the learned Civil Judge. Both parties were present in his Court on that date and the case was adjourned to 6-8 70. The pecuniary jurisdiction of Munsifs was extended to Rs. 5.000/- and this suit was accordingly transferred to the Court of Munsif, Kanore, by the order of the District Judge, Udaipur dated 6-7-70. This order was recorded on the order sheet of the file of the learned Civil Judge and the file was sent to the Court of Munsif. Kanore. A proper notice was not served on the defendant by the Court of Munsif, Kanore, intimating the defendant about the transfer of the case to it. It was held that an application made beyond thirty days of the date of the ex parte decree could not be entertained in view of Article 123 of the Limitation Act. The application for restoration filed by the defendant on 20-11-70 was therefore, beyond limitation and the Court had no jurisdiction to allow it.
9. A preliminary objection was taken on behalf of the defendant that as the lawyer of the plaintiff accepted the costs awarded by the Court, it is not open to them to challenge the order. This preliminary objection is based on a Division Bench decision of this Court in Maniram v. Beharidas AIR 1955 Raj. 145 Para 9 of the judgment in that case runs as follows:
The next case to which reference may be made is 'Narayanaswami Ayyar v. Subramania Pillai' AIR 1936 Mad 49(K). There a distinction was drawn between 'Venkatarayudu's case (A)' and the facts of that case, though the principle was accepted that a party who accepts the costs ordered for restoration or for setting aside an ex parte decree cannot challenge that order later. The distinction that was drawn was based on the Limitation Act. In that case, the court held that the application for setting aside the ex parte decree was filed beyond time, but in spite of that it set aside the decree on the ground that the defendant was claiming that he had a good defence. It was held that, in such a case, the Court had no jurisdiction to set aside the ex parte decree, and merely because costs were accepted by the party that would not preclude him from challenging an order without jurisdiction.
This case is, in our opinion' of a peculiar nature, inasmuch as the court was disregarding the mandatory provisions contained in Section 3. Limitation Act which specifically provides inter alia that an application made after the period of limitation shall be dismissed even though limitation has not been set up as a defence. The duty of the court under this section is clear, and that was the reason why the principle was not applied in this particular case.
The court had found as a fact that the application was made beyond time and inspite of that did not dismiss it. The facts of the case before us are different. Here the question whether the court had jurisdiction or not to restore the suit is a very complicated one and in the circumstances, this authority cannot help the applicant.
10. It is thus clear from the above judgment that the principle of approbation and reprobation is not applicable in a case where the application for restoration was made beyond time.
11. I, accordingly, allow the revision application and set aside the order of the learned Additional Munsif. The ex parte decree is restored. In the circumstances of the case, I leave the parties to bear their own costs.