1. This is an application to set aside a decree passed ex parte. The suit was filed in August 1936 for the recovery of a sum of Rs. 5330-12-9. The defendant filed his written statement and thereafter there was discovery and inspection by both sides. The suit appeared on the special list on 5th May 1938 and it was then directed to be placed on the prospective list. Eventually the suit appeared on the peremptory list on 31st March 1939 and it was decreed ex parte on 5th April 1939. The defendant has applied by way of motion to have this decree set aside, the application being endorsed by the Assistant Registrar of this Court as being made on 5th May 1939. The notice of motion was served on 9th May and the returnable date was 15th May 1939. The defendant states that he is a resident of Madura some 1400 miles away from Calcutta. He left instructions with his attorney Mr. P.C. Palit to instruct counsel and to let him know in time when the suit would be taken up for hearing. He waited for some time but as he received no intimation he asked his brother to write to Mr. Iyengar, a pleader who had come to Calcutta on some business of his own, to make enquiries. Mr. Iyengar made enquiries and discovered that the attorney of the defendant had died before the suit could be heard and that the suit had been decreed ex parte on 5th April 1939. The defendant then came to Calcutta and found out that his attorney had died some time in March and that he had been seriously ill for some time before. He made further enquiries and then presented the present application; in Court on 5th May 1939. He asked the Court to treat the application as being made on that day and an endorsement to that effect has been made on the petition. He contends that he could not appear on the date fixed for hearing because his attorney had not informed him of the date owing to the attorney being on his deathbed at the time.
2. On behalf of the plaintiff most of the facts alleged by the defendant are admitted. A clerk in the employ of the plaintiff company states however that a solicitor, Mr. L.M. Dutt, told him that one Mr. B.G. Bose, the articled clerk of the defendant's solicitor, Mr. Palit, had told him that Mr. Palit had sent several letters to the defendant asking for funds and that the defendant had neglected to comply with this request. Mr. Bose had also said, that it was uncertain whether the suit would be defended or not. It is argued that the story of the defendant that he was prevented from appearing because his solicitor had not communicated with him is untrue and that therefore this application should be dismissed. The next point taken is that this application has been made more than 30 days after the passing of the decree and that it is barred by limitation. I shall consider first whether the defendant was prevented by sufficient cause from appearing. Upon the affidavits and correspondence before me, I accept the defendant's explanation as being true. It is admitted that the defendant took all the necessary steps to defend the suit. He applied for discovery and inspection and also inspected the plaintiff's documents. It is admitted that the attorney did die some time in March 1939. The suit was decreed on 5th April 1939. The case of the plaintiff about the defendant's knowledge that the suit was on the hearing list is in my opinion not established. The clerk of the plaintiff company has no personal knowledge of the facts alleged by him, He heard it from some one who again heard it from some one else. Neither of these persons have sworn to these facts. On the other hand the defendant has produced a telegram and a letter which support his case that he had no knowledge about the date fixed for the hearing of the suit. I am satisfied that the defendant was not informed about the progress of the suit by his attorney owing to the attorney's grave illness and subsequent death. There has been no serious negligence on the part of the defendant. He has shown sufficient cause for not appearing on the date the suit was taken up for hearing.
3. The next point for consideration is whether this application is barred by limitation. In this connexion I must first determine when the application was made. On behalf of the petitioner it is pointed out that the application was made on 5th May 1939 when it was first presented in Court and when the Court treated the application as having been made on that date. The endorsement of the Assistant Registrar on the petition 'noted as made today' is relied upon. On behalf of the plaintiff-respondent the contention is that the application was not made until 9th May when the notice of motion was served on the plaintiff and that the presentation of the application to Court cannot amount to a making of the application. Reliance is placed on the decision of Lort-Williams J., in Jnaneendra Kumar v. Amrita Krishna : AIR1933Cal886 where he has reviewed the leading cases on this point and has held that an application by way of motion must be taken to be made on the date of the service1 of the notice of motion and that the period of limitation will cease to run from that date. This decision however can have no application to the present case inasmuch as the petitioner has got an order from this Court to the effect that this application was to be treated as having been made on 5th May 1939. I must hold therefore that the application was made on 5th May 1939, that is to say within 30 days of the date of the decree. That being so, no question of limitation arises. It is therefore not necessary for me to deal with the vexed question whether this is an application which is governed by Article 164, Limitation Act, or not.
4. It was held by Pearson J, in Rmjan Ali v. Haflz Abdul Gaffar : AIR1928Cal864 that Article 164, Limitation Act, did not apply to an application on the Original Side of this Court to set aside a decree passed ex parte, on the ground that such an application was not one made under Order 9, Rule 13, Civil P.C., or under any express provision of the Code. The correctness of this decision was strongly doubted by McNair J., in a recent case which has not been reported. I refer to the case in Suit No. Sadani Cotton Ginning Pressing Factory Ltd. v. Mahadevlal Bajrang Lal Suit No. 1025 of 1938. His Lordship was of opinion that Article 164, Limitation Act, did apply to such an application but he followed the decision of Pearson J., in Rmjan Ali v. Haflz Abdul Gaffar : AIR1928Cal864 on the ground that the matter was not free from doubt and on the ground that the view of Pearson J., had prevailed in this Court for more than 10 years. The question whether Article 164, Limitation Act, will govern the present motion or not however does not arise for decision in the present case as the application has been made within 30 days of the decree. I do not propose therefore to express any opinion on this point in the present application. All I need say is that the present application is not barred by the law of limitation.
5. The decree must in my opinion be set aside and the suit must be reheard but the defendant should be put on terms inasmuch as the plaintiff is not in any way responsible for what has occurred. As a condition precedent the defendant must pay the costs of the application and the costs incurred by the plaintiff on the day the suit was decreed ex parte. I assess these costs tentatively at Rs. 500. The defendant shall pay to the plaintiff s solicitor this sum within one month from date. Any excess or deficit will be adjusted after taxation. In default of such payment this application shall stand dismissed with costs. If the amount is paid within time the ex parte decree shall be set aside and the suit shall be reheard. The suit shall appear on the appropriate prospective list a week after the payment is made.