1. The respondents had obtained in the Court of the District Munsif, Tiruvalur, against the appellant a. preliminary mortgage decree ex parte on 2nd September, 1912, and a final decree 'ex parte on 15th September, 1917. On 20th November, 1920, the appellant applied in I. A. No. 39 of 1921 to the District Munsif to set aside the ex parte final decree. This was allowed on 17th December, 1921. The entry on the notes paper referring to this runs :--' Ex parte decree set aside as per order on I. A. No. 39 of 1921. For written statement and draft issues adjourned to 6th January, 1922.' The order itself is headed, ' This is a petition to set aside the ex parte final decree passed against the petitioner,' and concludes ' It is ordered that the petition be and the same hereby is allowed.' When the re-hearing of the application for final decree came on, it was contended before the District Munsif, a different Judge from the one who passed the order on I. A. No. 39 of 1921, that the notes paper showed that his predecessor had set aside not only the final decree but the preliminary decree as well, because, he had called for written statement and draft issues and that therefore the whole suit should be taken up again. The District Munsif decided against that contention, found that the application for the final decree was barred by limitation, and he therefore dismissed the application On appeal the lower appellate Court held that the District Munsif's order on I. A. No. 39 of 1921 had set aside both the preliminary and final decrees. He reversed the District Munsif's order and remanded the whole suit for rehearing. The appellant (defendant) has now appealed against that order.
2. We think that the lower appellate Court's view on this matter is clearly wrong. The application to the District Munsif was to set aside the final decree only and this was clearly apprehended by the plaintiff also as is obvious from his counter in the I. A. The order itself, as quoted above, clearly gave what the petitioner in that I. A. asked for and no more. We must go by that order and not by what we think from the District Munsif's note that he intended the order to be. Even from the notes paper it would appear that the entry calling for written statement and draft issues was a mistake, as, on the adjourned date of hearing, it was a counter-statement and not a written statement that was put in and accepted by the same District Munsif and no draft issues were ever put in. The case was disposed of on that counter statement. It would take much stronger evidence to convince us that the District Munsif deliberately ordered a relief which he was not asked to give by either party. We are quite clear that only the final decree was set aside and the order of the lower appellate Court remanding the whole suit for trial cannot therefore be supported and must be set aside.
3. We are asked, however, not to accept the District Munsif's finding that the application for final decree was out of time. The preliminary decree was on 2nd September, 1912. On 17th March, 1913 an application for final decree was made and dismissed because the notice was not served. On 16th March, 1916 another application was filed, the fate of which is uncertain. On 23rd March, 1917 a third application was filed, the one now in question. It was commonly believed at that time that applications for final decrees were to be treated as applications for execution and were subject to the Rules of Limitation governing these. Of late the Courts have laid down that an application for a final decree is a proceeding in a suit and not in execution, and therefore only one application is permissible and it must be put in within three years of the preliminary decree. Adopting this later view of the law, the District Munsif dismissed the application of 23rd March, 1917 as out of time. The plaintiff contends that on the same view of the law the dismissal of his application of 17th March, 1913 on the ground that notice was not served was improper, because no notice was necessary on such an application, and therefore his application of 23rd March, 1917, may fairly be treated as a continuation of the application improperly dismissed on 17th March, 1913. We need not refer further to this question, because we think that the respondent-plaintiff is bound to succeed on another ground and that is that the appellant-defendant's application to set aside the ex parte final decree was itself out of time.
4. The ex parte final decree was passed on 15th September, 1917. In I. A. No. 39 of 1921 the defendant alleged that he became aware of it on 20th October, 1920. He did not file his I. A. until 20th November, 1920, one day over the thirty days allowed by law. We have verified that 19th November, 1920 was a working day in the Court. No explanation for the delay was offered in the petition or affidavit. Prima facie therefore his petition was out of time. The point was raised before the lower appellate Court which disposed of it on two grounds. First, that the ground of limitation was not taken by the plaintiff when I. A. No. 39 of 1921 was put in, and secondly, that the plaintiff cannot now take this point in appeal from an order setting aside the final decree since it is not a ground affecting the decision of the case within the meaning of Section 105 of the Civil Procedure Code. The first point is not a good one. In his counter the plaintiff clearly contended that the application was time-barred although he then thought that the date of the presentation was 11th January, 1921. It was a mere quibble to say that he had not taken the point because he made a mistake as to the actual date of presentation of the petition.
5. As to the second point it is quite true that certain High Courts have interpreted the words ' affecting the decision of the case ' in Section 105 as meaning ' affecting the decision of the case on the merits ' see for example the Calcutta High Court in Chintamony Dassi v. Raghunath Sahoo ILR (1895) C 981, the Allahabad High Court in Gulab Kunwar v. Thakur Das ILR (1902) A 464, Tassaduq Husain v. Hayat-un-nissa ILR (1903) A 280 and of the Lahore High Court in Fazal v. Hashmathi 31 IndCas 914, Budhu Ram Honda Ram v. Ram Jan 59 IndCas 676 and Sundar Singh v. Nigahiya 72 IndCas 410; but all these cases proceed on the principle that when the setting aside of the order has re-opened the hearing of the suit on the merits, the propriety of the setting aside of the order cannot be attacked in an appeal in the suit. In our opinion, they do not go beyond that or lay down that in no case can the propriety of an order setting aside an ex parte decree be challenged in an appeal against a decree finally passed in the suit. For example, a proper case in which it could be set aside is the case set out in Gopala Chetty v. Subbier : (1903)13MLJ308 , where an ex parte decree had been set aside on behalf of a party who had never applied for it to be set aside. In Nand Ram v. Bhopal Singh ILR (1912) A 592 a bench of the Allahabad High Court followed Gopala Chetty v. Subbier : (1903)13MLJ308 although perhaps it has stated too broadly the general proposition. It seems to us that the present case is another in which an order setting aside an ex parte decree may be properly attacked. It is clear that, when the result of the setting aside of the order has been the hearing of the suit de novo on its merits, no injustice would be done to any one by the decision of the case and the final result is not affected. But in the present case the result would be very different. The defendant has deliberately no doubt for good reasons from his own point of view refrained from opening the whole suit and only wants the final decree to be re-opened because he thinks he has a good point of limitation which will enable him to render the preliminary decree futile. So far from courting a decision on the merits he is trying to burke such a decision altogether. In such circumstances we cannot but hold that an order setting aside the ex parte final decree while retaining the ex parte preliminary decree is an order ' affecting the decision of the case.'
6. We consider therefore that it is open to us to consider the propriety of the District Munsif's order allowing the final decree to be set aside. The application was out of time and we can see no reason for indulgence or for not enforcing strictly the law of limitation. Technicalities may be waived in the case of a party bona fide seeking to do justice as well as to get it : but the defendant's dodge is too apparent. He admits the mortgage claim, as he does not challenge the ex parte preliminary decree, but seeks to defeat it by a technicality of law affecting the final decree which only became available to him on the later interpretation of the law. He would seek to enforce the law of procedure against the plaintiff while claiming absolution for himself from the Law of Limitation. He would re-open the suit only to the extent to which it would benefit himself. We are not prepared to relax the Law of Limitation in favour of such a person. We therefore hold that the application to set aside the final decree was out of time. The result is that the final decree of 15th September, 1917, stands. We therefore reverse the order of the lower appellate Court and we direct accordingly. The defendant will pay the plaintiff's costs in the lower Courts; he will get his costs in this appeal.