1. We are invited in this Rule to set aside an order made under Rule 13 of Order IX of the Code of Civil Procedure. The petitioner sued the opposite party and four other persons for recovery of arrears of rent. The opposite party, who was the first defendant, alone entered appearance and filed a written statement. On the day of trial, however, no one appeared on his behalf. The result was that an ex parte decree for rent was made against him on the 15th January 1914. On the 25th January, he made an application to the Court to set aside the ex parte decree. That application was granted on the 27th September 1914. The validity of this order is now challenged on two grounds, namely, first, that the Court was not competent to entertain the application under Rule 13 of Order IX of the Code of 1908, inasmuch as the requirements of Section 153A of the Bengal Tenancy Act were not fulfilled; and, secondly, that the Court was bound to dismiss the application as barred by limitation under Article 164 of the Schedule to the Indian Limitation Act.
2. As regards the first ground, we are of opinion that it cannot possibly be maintained. Section 153A requires that no application to set aside an ex parte decree in a suit between a landlord and tenant as such shall be admitted, unless the applicant has, at or before the time when the application is admitted, deposited in the Court to which the application is presented the amount, if any, which he admits to be due from him to the decree-holder. The petitioner contends that the defendant admitted that rent was due from him to the plaintiff and yet did not make the requisite deposit. To test the validity of this contention, we must examine the plaint and written statement. The plaintiff claimed rent in respect of several parcels of land within definite boundaries, said to cover an area of 5 pakis and alleged to have been held by the defendant under him at an annual rent of Rs. 3-10. The defendant pleaded that the land mentioned, in the plaint constituted a portion only of his holding; he appended to the written statement a list of the parcels of land held by him within the boundaries mentioned and asserted that he held all these lands as one holding at an annual rent of Rs. 7-12. He further stated that he had always been ready and willing to pay the rent lawfully payable by him. Under these circumstances, we have to determine whether the defendant may be said to have admitted that rent was due from him to the plaintiff within the meaning of Clause (a) of Section 153A. We are of opinion that the question must be answered in the negative. The defence in substance was that the defendant did not hold the holding alleged by the plaintiff and that he was liable in respect of rent of a different holding. That does not constitute an admission that rent is due from him to the plaintiff; the admission contemplated by the Legislature is an admission that rent is due in respect of the holding for which the suit has been instituted. It is further clear that if the contention of the plaintiff is well-founded, the written statement itself should not have been accepted under Section 149 of the Bengal Tenancy Act; it is significant that no such objection was taken by the plaintiff to the reception of the written statement. In our opinion, it is plain that the requirements of Section 153A have been fulfilled; the defendant was not bound to make any deposit, because he did not admit that any money was due from him to the plaintiff in respect of the holding for which rent was claimed. The first contention consequently fails.
3. As regards the second ground, it is plain that the application is, on the face of it, barred by limitation. Article 164 of the Schedule to the Limitation Act provides that an application by a defendant for an order to set aside a decree passed ex parte may be made within thirty days from the date of the decree or, where summons was not duly served, when the applicant had knowledge of the decree. In this case, the summons was duly served. Consequently, the defendant was bound to make his application within 30 days from the 15th January 1914. This he did not do. It was not competent to the Court to extend the time under Section 5 of the Indian Limitation Act, nor was any ground of fraud established so as to bring the case within the scope of Section 18. On behalf of the respondent, however, it has been urged that this point was not taken before the Court below and should not now be entertained. It is conceded on behalf of the petitioner that the point was not brought to the notice of the Court, but under Section 3 of the Indian Limitation Act it was obligatory upon the Court to dismiss the application, although limitation was not set up as a defence, Balaram v. Mangta Das 34 C. 941 : 6 C.L.J. 237 : 11 C.W.N. 959. The position, then, is that the Court has entertained an application which, on the face of it, was barred by limitation and has failed to adjudicate upon the question of limitation. Consequently, as ruled by this Court in the case of Kailash v. Bissonath 1 C.W.N. 67 it is open to this Court to interfere in the exercise of its revisional jurisdiction under Section 115 of the Code, although it might not have been open to the Court to interfere if the Court below had considered the question of limitation and decided it erroneously, as ruled in the cases of Sundar Singh v. Doru Shankar 20 A. 78 : A.W.N. (1897) 168 and Ramgopal v. Joharmall 15 Ind. Cas. 547 : 39 C. 473. We hold accordingly, that the Court below acted with material, irregularity in the exercise of its jurisdiction in granting relief without adjudication of the question of limitation, on an application which, on the face of it, was barred by limitation.
4. The result is that this Rule is made absolute and the order of the Court below discharged. As the ground on which the petitioner succeeds, was not taken in the Court below, each party will pay his own costs throughout these proceedings.