1. In this matter I passed on order on 8th November that the ex-parte decree of 2nd May should be set aside. The order has not yet been completed, and I have been asked to reconsider it on further argument. It is argued that Article 164, Lim. Act, concludes the matter, for that article provides a limitation period of 30 days for an application by a defendant to set aside a decree passed ex parte, the time from which the period begins to run being either the date of the decree or, where summons has not been duly served, the time when the applicant has knowledge of the decree. It is said that in the circumstances of this case the period of limitation should commence from the date of the decree; that there is no question in the present case as regards the due service of the writ of summons, and it is only in the latter case that the period of limitation commences to run from the time when the applicant has knowledge of the decree
2. But on the other hand it is contended that Article 164 does not apply in this case, because it would only apply to cases of applications under the Civil Procedure Code. It is then contended that this is not an application under Order 9, Rule 13, Civil P.C. and in support of that contention the case of Banerjee v. Suhrawardy A.I.R. 1928 Cal. 72 is referred to. The applicant argues that that case is no authority in the present circumstances, for there the question was as to the defendants' rights where no appearance had yet been entered, according to the procedure prevailing on the original side : whereas in the present case appearance had been entered, and all preliminary steps taken to make the suit ripe for hearing. The argument therefore is that that case only shows that Order 9, Rule 13, is not exhaustive : there may be cases to which Order 9, Rule 13, does not apply, and it does not cover such circumstances where that procedure is inapplicable. I have read the judgment of Rankin, C.J. in that case with attention, and although it is of course correct to say that that Judgment is to be taken relative to the facts in that case, it appears to me that the reasoning is applicable also to the present circumstances. In the present case the failure to appear was a matter concerned with the procedure peculiar to the original side of this Court under its rules, in which the applicant's attorney was possibly negligent or not as diligent as he might have been, with the result that the decree was made ex parte. I will only refer to the passage from the judgment of the Chief Justice which I consider makes the reasoning there applicable also to the present case. He says:
I am unable to hold that the exact words of Rule 13, Order 9, are to be applied on the footing that they are directly applicable under the rules of the original aide and that they are exhaustive. It has been the general practice on the original side to follow, the analogy of Rule 13, Order 9, on general principles of justice. As a rule, the case Will not be restored unless there be sufficient cause for the party not being ready to go on with the case when the case came before the Court. But on the original side at all events the terms of Rule 13 do not prevent the Court where there is an element of negligence from restoring the suit upon proper terms.
4. The present circumstances are such as to enable the Court to act upon its discretion apart from the specific provision of Article 164, Lim. Act. It is here no question of using inherent jurisdiction to override a statutory provision : it is not statutory provision specifically applicable to the circumstances of this case.
5. I will just add one word. In my previous judgment I attributed a certain carelessness to the Court office. This is so far to be minimised by the fact (since ascertained) that the error in the suit number as appearing in the list was due at any rate primarily to the fact that the requisition to place the suit in the prospective list, signed by the plaintiff's attorney itself was headed by that error in the suit number.
6. The result is that the order already made will stand including the order for costs. The costs of the present application will be costs in the cause.