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Hoshiar Singh Vs. Smt. Inder Parkash Devi - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 160 of 1981
Judge
Reported inAIR1983J& K63B
ActsJammu and Kashmir Limitation Act, 1995 - Schedule - Article 164; ;Limitation Act, 1963 - Schedule - Article 123
AppellantHoshiar Singh
RespondentSmt. Inder Parkash Devi
Appellant Advocate G.N. Goni, Adv.
Respondent Advocate R.P. Sethi, Adv.
DispositionPetition dismissed
Cases ReferredPanna Lal v. Murari Lal
Excerpt:
- .....along with the statement of the petitioner. the notice clearly indicated the court which had passed the decree and the plaintiff in whose favour it had been passed. the petitioner in his statement has admitted that a criminal case pertaining to the suit land was pending between the parties, in the court of chief judicial magistrate, jammu, even before the institution of the suit in which the impugned decree was passed, and that he had been regularly appearing in the criminal court in the said case. not only that, he has further gone to state that the respondent had no other dispute with him except the one pertaining to the suit land. these facts and circumstances leave no room for doubt that the petitioner had sufficient knowledge of the material facts to give him a clear.....
Judgment:

I.K. Kotwal, J.

1. This revision petition is directed against an order of District Judge, Jammu, dismissing the petitioner's appeal against an order of City Judge, Jammu, refusing to set aside the ex parte decree passed by him against the petitioner.

2. A suit for possession of land measuring 6 marlas and odd was brought by the respondent against the petitioner on 27-11-1977 in the Court of City Judge, Jammu. The petitioner having allegedly refused to accept service of the summons sought to be served upon him on 25-1-1978, the process-server made a report accordingly and the Court proceeded ex parte against the petitioner. An ex parte decree was eventually passed against him on 29-8-1978. Execution of the decree was then taken out by the respondent on 11-11-1978, and a notice was issued in it by the Court on 7-6-1979, which was served upon the petitioner on 11-6-1979, requiring him to attend the Court on 30-7-1979. Despite service of notice on him, the petitioner did not appear in the Court on 30-7-1979, but appeared on 3-8-1979, which was the next date fixed in the case. He also engaged a counsel to defend him in these proceedings, who appeared in the Court on 23-8-1979. On 24-8-1979, the petitioner moved an application for setting aside the ex parte decree Dt. 29-9-1978,alleging that no summons was ever served, or even sought to be served upon him and that he had acquired knowledge of the decree on 23-8-1979. This application was resisted by the respondent on the ground that it was barred by time; firstly because the petitioner had deliberately refused to accept service of the summons on 25-1-1978, and secondly, because in any event he had acquired knowledge of the decree on 11-6-1979, when notice in the execution application was served upon him. The parties led evidence in support of their respective cases, and the trial Court eventually dismissed the petitioner's application, holding that he had acquired knowledge of the decree on 11-6-1979, and the application for setting aside the same having been made by him on 24-8-1979, i.e., more than thirty days after the date of its knowledge, the same was barred by limitation. A similar view was taken by the learned District Judge in appeal. It is thus manifest that both the Courts did not accept the respondent's case that the petitioner had been duly served in the suit, and found him entitled to make the application for setting aside the decree within thirty days from the date he had acquired its knowledge. Decision of this revision petition, therefore, turns upon the question as to when did the petitioner acquire the knowledge of the decree.

3. Appearing for the petitioner, Mr. Goni argued that knowledge of the decree within the meaning of Article 164 of the Limitation Act meant knowledge of the particular decree, and not merely a vague knowledge that some decree has been passed against the defendant by some Court. The notice (EXP. A) served upon the petitioner on 11-6-1979, argued the learned counsel, merely conveyed a vague information to him that some decree had been passed against him, as such, limitation under Article 164 did not start running from 11-6-1979, but from 23-8-1979, when he actually obtained the knowledge of the particular decree that had been passed ex parte against him, or at the most from 3-8-1979, when he had appeared in the Court in the execution proceedings pertaining to the said decree. For this, he relied upon the following observations contained in Panna Lal v. Murari Lal, AIR 1967 SC 1384 (at p. 1386).

'We agree that the expression 'knowledge of the decree' in Article 164 meansknowledge of the particular decree which is sought to be set aside. When the summons was not duly served, limitation under Article 164 does not start running against the defendant because he has received some vague information that some decree has been passed against him.'

4. It is true that before time may start running against the defendant, it has to be shown that the knowledge of the decree which he had acquired was not merely a vague knowledge that some decree has been passed against him by some Court but a knowledge that a particular decree has been passed against him by a particular Court in favour of a particular person. Nevertheless, imputation of such knowledge to the defendant is not a matter of form, but a matter of substance, and each case shall' have' to be decided on its own peculiar facts and circumstances. This principle was succinctly laid down by their Lordships in Panna Lal's case (supra), wherein it was further observed;

'The test of the sufficiency is not what the information would mean to a stranger, but what it meant to the defendant in the light of the previous dealings with the plaintiff and the facts and circumstances known to him. If from the information conveyed to him the defendant has knowledge of the decree sought to be set aside, time bargins to run against him under Article 164. It is not necessary that a copy of the decree should be served on the defendant. It is sufficient that the defendant has knowledge of the material facts concerning the decree, so that he has a clear perception of the injury suffered by him and can take effective steps to set aside the decree.'

5. Applying this test to the present case, it cannot be said that the petitioner in view of its peculiar facts and circumstances, did not acquire knowledge of the particular decree that had been passed against him, when the notice EXP. A in the execution proceedings was served upon him on 11-6-1979, This is amply borne, out from reading the said notice along with the statement of the petitioner. The notice clearly indicated the Court which had passed the decree and the plaintiff in whose favour it had been passed. The petitioner in his statement has admitted that a criminal case pertaining to the suit land was pending between the parties, in the court of Chief Judicial Magistrate, Jammu, even before the institution of the suit in which the impugned decree was passed, and that he had been regularly appearing in the Criminal Court in the said case. Not only that, he has further gone to state that the respondent had no other dispute with him except the one pertaining to the suit land. These facts and circumstances leave no room for doubt that the petitioner had sufficient knowledge of the material facts to give him a clear perception of the decree that had been passed against him, as also the injury he was likely to suffer in case he did not move an application for setting aside the same within thirty days from 11-6-1979, when a notice was served upon him in the execution proceedings. He filed the said application on 24-8-1979, i.e., more than thirty days thereafter, which was clearly barred by time. As such no fault can be found with the view taken by the Courts below.

6. In the result, the revision petition fails, which is dismissed accordingly, but in the circumstances of the case, without any order as to costs.


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