P.N. Mookerjee, J.
1. This rule raises an important question under Section. 17 of the new Limitation Act. The rule arises under the following circumstances
2. The petitioner was the defendant in the connected ejectment suit, brought by the opposite party. The suit was, eventually, fixed for hearing on 30th August, 1965. The petitioner had entered appearance in the suit, filed his written statement and was contesting the suit-But on this date of hearing, he was absent and the suit was decreed ex parte. There* after, the instant application was filed for setting aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure, on 14th December, 1965, upon the allegation. Enter alia, that the date, noted in his lawyer's diary, was 27th November, 1965, for settling the date of hearing, and, on that date, the mistake was discovered and the instant application was eventually filed on the 14th of December, 1965.
3. This application under Order 9, Rule 18 of the Code of Civil Procedure was followed by an application under Section 5 of the Limitation Act for condoning the delay if any. In the making of the said application.
4. The application was opposed by the opposite party on the merits and also on the ground of limitation,
5. The learned trial Judge, however, held that the petitioner's absence on the date of hearing, namely, 30th of August, 1965, was due to mistake, as disclosed in she evidence of his lawyer, owing to the wrong entry in his diary, as aforesaid. The trial Court also accepted the petitioner's case that this mistake was discovered on the 27th of November, 1965. As, however, there was no explanation of delay for the subsequent days, namely, from 28th November, 1965, to the 14th December, 1965, when the application under Order 9, Rule 13 of the Code, was actually filed, the learned trial Judge held that the petitioner's application under Order 9, Rule 13, of the Code of Civil Procedure, which was, obviously, beyond 30 days from the date of hearing and the ex parte decree, was time-barred. He evidently found nothing to Interfere under Section 5 of the Limitation Act.
6. The petitioner took an appeal against the learned trial Judge's decision, rejecting his application on the ground of limitation.
7. Before the learned Subordinate Judge, who heard this appeal, the question of limitation was argued from two points of view. In the first place, it was urged that the application of the petitioner under Order 9, Rule 13, of the Code was within time, in view of Section 17 of the new Limitation Act, vide Clause (c) of the said section. Secondly, it was urged that, in any event, the delay. If any, in the presentation of the said application, should have been condoned under Section 5 of the Limitation Act.
8. The learned Subordinate Judge overruled both the above contentions upon the view that Section 17 of the new Act had no application to the instant case and, on the other question, he was of the opinion, in agreement with the learned trial Judge, that there having been no explanation of the delay between the period, 27th November. 1965 and 14th December 1965, the petitioner's application, be it under Order 9, Rule 13 of the Civil P. C, or under Section 5 of the Indian Limitation Act, in spite of the evidence, given on his behalf, namely, the evidence of the lawyer concerned, who was the sole witness for the petitioner, cannot succeed. He, accordingly, dismissed the petitioner's appeal
9. Against this order, the present Rule was obtained by the petitioner.
10. We may state at once that, so far as Section 5 of the Limitation Act is concerned, the learned Judges in the two Courts below are perfectly right hi holding that there is no explanation on the record, of the delay between 27th November, 1965, and 14th December 1965, and, in that view, their rejection of the prayer for condonation of the delay if any, must be upheld.
11. We feel, however, that, in the circumstances of this case and having regard to the language of Section 17(1)(c) of the new Limitation Act, the petitioner will be entitled to relief and his application under Order 9, Rule 13, of the Code of Civil Procedure would not be time-barred.
12. It is clear from what we have stated above that the basis of the said application was the mistake of the petitioner's lawyer, to wit, of the petitioner. It was, therefore, a case, where the application under Order 9, Rule 13 of the Code of Civil Procedure was for relief from the consequence of a mistake. This brings the matter clearly within Clause (c) of Section 17(1) of the new Act, and, once that position is accepted, the period of limitation, which, obviously. Is prescribed under Art 123 of the new Act, would begin only when the applicant has discovered the mistake, or, could, with reasonable diligence, have discovered it; in other words, on the findings of the two Courts below, with which we have no reason to disagree, only the 27th November, 1965. The application under Order 9, Rule 13, of the Code of Civil Procedure would, on the above view, be within time, if it is filed within 30 days from the said date. It was actually filed on the 14th December, 1965, which would be well within the said period. There would, accordingly, be no question of limitation in the instant case in the matter of the above application and no question of extension of time or condonation of delay would arise.
13. The petitioner, therefore, though his application under Section 5 of the Limitation Act has been rightly rejected, would be entitled to succeed in his application under Order 9, Rule 13 of the Code of Civil Procedure, which will not be time-barred on our above finding and which also succeeds on the merits on the concurrent findings of the two Courts below.
14. In the premises, we make this Rule absolute, set aside the impugned orders of the two Courts below, direct that the petitioner's application under Order 9, Rule 13, of the Code of Civil Procedure be allowed, the ex parte decree in question be set aside and the suit be restored to file and do proceed, thereafter, in accordance with law.
15. There will be no order for costs in this Rule.
16. I agree.