Chandramauli Kr. Prasad, J.@mdashPlaintiff-petitioner, aggrieved by the order dated 25.1.2006 passed by the Munsif, Bhabua in Miscellaneous Case No. 26 of 2000 setting aside an ex parte judgment and decree dated 16.8.2000 passed in Title Suit No. 304 of 1998, has preferred this application. Shorn of unnecessary details, facts giving rise to the present application are that the plaintiff filed Title Suit No. 304 of 1998 for declaration of his title and recovery of possession over the land as detailed in Schedule A of the plaint. Defendants, including defendant No. 4-opposite party, appeared in the suit on 29.1.1999. Suit was adjourned from one day to another including 2nd of March, 2000. Defendants did not appear thereafter and by order dated 14.3.2000 debarred from filing the written statement. Suit was ultimately decreed by an ex parte judgment and decree dated 16.8.2000 and according to the plaintiff delivery of possession has been effected in his favour on the basis of an execution case levied by him. Defendant No. 4 filed application on 2.12.2000 for setting aside the ex parte decree without impleading other defendants but impleading the plaintiff. According to him he fell ill after entering appearance in the suit and when he recovered from illness he came to know that the suit had been disposed off and accordingly, applied for certified copy of the judgment and decree on 31.8.2000 which was delivered to him on 7.11.2000. Thereafter on 2.12.2000 he filed application for setting aside the ex parte judgment and decree. By reason of the impugned order, the ex parte decree has been set aside and while doing so, the Court below recorded the finding that this defendant was prevented by sufficient cause for appearing in the suit on account of his illness.
2. Mr. Shashi Shekhar Dwivedi, Senior Advocate appears on behalf of the petitioner and submits that the defendants had chosen to file application under Order 9, Rule 13 of the CPC without impleading other defendants. He points out that in absence of the other defendants the ex parte decree ought not to have been set aside.
3. Mr. Rajani Kant Pandey, appearing on behalf of the opposite party, however, submits that Order 9, Rule 13 of the CPC does not enjoin that all the defendants be made party in an application filed under Order 9, Rule 13 of the Code of Civil Procedure.
4. Having considered the rival submission, I do not find any substance in the submission of Mr. Dwivedi. Order 9, Rule 13 of the CPC contemplates that the Court shall make an order setting aside the decree if it is satisfied that the defendant was not duly served or was prevented by any sufficient cause from appearing in the suit. The proviso to the aforesaid Rule contemplates that where the decree is of such nature that it cannot be set aside as against impleaded defendant only, it may be set aside as against all or any of the other defendants. In my opinion the proviso gives discretion to the Court to decide about the effect of the decree on other defendants but nowhere provides that for passing of such an order other defendants should also be made party to the proceeding.
5. The view which I have taken finds support from a decision of the Division Bench of the Hyderabad High Court in the case of Sultan Hussain Khan vs. Satnarain Lal (AIR 1953 Hyd 191), the relevant portion whereof reads as follows:-
"Under the provisions of Order 9, Rule 13, Civil P.C., there is no compulsion on the petitioner to make his co-defendants parties to the petition. All that is laid down in the above rule is that if the Court is satisfied that the summons was not duly served, the Court shall make an order setting aside the decree as against him upon such terms and conditions as to costs, payment into court or otherwise, as it thinks fit. There is a proviso to this rule which lays down that where the decree is of such a nature that it cannot be set aside as against such defendants only, it may be set aside as against all or any other defendants also. Thus, a discretion has been given to the Court to decide other defendants. It is nowhere laid down in this proviso that for the purposes of passing such an order the other defendants should also be made parties to the proceedings. The lower Court has based its judgment on the reasoning that as the decree is against the defendants, they all should be made parties."
6. Reliance in this connection can also be made to a decision of the Orissa High Court in the case of
"An application under Order IX, Rule 13 of the Code was maintainable even without the co-defendants being impleaded."
7. Mr. Dwivedi then submits that the application filed by defendant no. 4 was barred by limitation and although no such plea was raised before the Court below, in view of Section 3 of the Limitation Act, same ought to have been dismissed being barred by limitation. He points out that no application for condonation of delay was filed and, as such, the Court below ought not to have set aside the ex parte decree on an application filed after the period of limitation. He points out that the ex parte decree was passed on 16.8.2000, whereas the application for setting it aside filed on 2.12.2000. He submits that Article 123 of the Limitation Act provides limitation of 30 days for filing application to set aside ex parte decree passed in a suit, when defendant had appeared in the same. According to him, it is only in case when defendant had not appeared in the suit that limitation will start running from the date of knowledge.
8. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of
"In view of the peculiar facts of this case without going into the merits of the contentions raised by the counsel for the appellants, we think it is just and fair that we should not at this point of time interfere with the impugned order though the High Court could have avoided passing such orders in proceedings where the maintainability itself was being seriously questioned, be that as it may, we at this stage think it appropriate that the High Court should consider the question of condonation of delay and the objection of the appellants herein in regard to maintainability of the appeal first, before proceeding with the appeal any further."
9. Reliance has also been placed on a decision of the Supreme Court in the case of
"The evidence adduced by the appellants which has been accepted by the trial court establishes that respondent 1 had knowledge of the decree in August 1977 itself and it negatives the claim of respondent 1 that he had no knowledge of the decree till June 22,1981. Since this was the only circumstance which persuaded the High Court to condone the delay in filing of the application under Order 9, Rule 13 CPC the order of the High Court condoning the delay in filing of the said application cannot be upheld and the application under Order 9, Rule 13 CPC must be held to have been rightly dismissed as barred by limitation by the Trial Court and the Appellate Court."
10. Reliance has also been placed on a decision of this Court in the case of Smt. Rukmini Sinha and Another vs. Smt. Laxmi Devi, [2002(1) B.L.J. 758],whereas it has been held as follows:-
"This Court fails to appreciate as to how those decisions are at all relevant in the present case, where there was no petition even filed for condonation of delay in filing of the petition for setting aside ex parte decree which apparently was time barred. There is nothing to show that any prayer was even made for time to file petition for condonation of delay."
11. Mr. Pandey, however, submits that very assumption of the plaintiff that the application filed under Order 9, Rule 13 of the CPC was barred by limitation is unfounded. He points out that the defendant had appeared in the suit but later, on account of illness did not appear and only thereafter heard that the suit was disposed of on 16.8.2000. Then he applied for certified copy of the judgment and decree on 31.8.2000 and got the same on 7.11.2000. According to him in the facts of the present case the date of knowledge would be 7.11.2000 and the application having been filed on 2.12.2000, same is within the period of limitation and hence, there was no occasion for filing the application for condonation of delay.
12. According to Mr. Pandey, limitation will not start from the date he received vague information that some decree has been passed. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Panna Lal vs. Murari Lal (AIR 1967 SC 1384), in which it has been held as follows:-
"Limitation under Art. 164 does not start running against the defendant because he has received some vague information that some decree has been passed against him. It is a question of fact in each case whether the information conveyed to the defendant is sufficient to impute to him knowledge of the decree within the meaning of Art. 164. 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 his 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 begins to run against him under Art. 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."
13. Reliance has also been placed on a Division Bench judgment of this Court in the case of
"It has further been held that when the summons was not duly served, limitation under that article does not start running against the defendant because he has received some vague Information that some decree has been passed against him and that the test of the sufficiency is not what the information would mean to a stranger, but what it meant to the defendant in the tight of his previous dealing with the plaintiff and the facts and circumstances known to him. Article 123 of the new Limitation Act corresponds to Article 164 of the old Act as there is no material change in the language of the two articles. On the facts and in the circumstances of the case, it cannot be held that from the mere fact of the Commissioner holding inspection of the house at Gaya on 11th of March, 1970, the appellants must have had information and knowledge of the ex parte final decree against them. In my opinion, the appellants have also succeeded in proving that they came to know of the ex parte final decree within 30 days of the filing of the present application. The Court below, therefore, has also erred in holding that the present application under Order 9, Rule 13 of the Code is barred by time."
14. Yet another decision in which reliance has been placed is the decision of the Orissa High Court in the case of
"The date of knowledge appropriately therefore was 17.4.1982 when the defendant obtained the certified copy of the ex parte order. The petition under Order 9, Rule 13 C.P.C, having been filed on 10.5.1982 it was not barred by Art. 123 of the Limitation Act."
15. I do not find any substance in the submission of Mr. Dwivedi and the decision relied on by him are clearly distinguishable. True it is that defendant had appeared in the suit but later on, failed to appear on account of his illness which plea has been accepted by the Court below while setting aside the decree.
Article 123 of the Limitation Act prescribes as follows:-
| "123. To set aside a decree passed ex parte or to be rehear an appeal decreed or heard ex parte. | Thirty days | The date of the decree or summons or notice was not served, when the applicant had knowledge of the decree." |
16. From a plain reading of the aforesaid provision, it is evident that an application to set aside the ex parte decree can be filed within 30 days from the date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree. On 16.8.2000 this defendant came to know that the suit was disposed of. in my opinion, the expression knowledge of the decree in Article 123 of the Limitation Act would mean definite knowledge about the decree. Some vague information that some decree has been passed is not sufficient to impute knowledge of the decree. Defendant applied for the certified copy of the judgment and decree on 31.8.2000, which he obtained on 7.11.2000 and filed the application for setting aside the decree on 2.12.2000. In my opinion, the limitation will run from 7.11.2000, the date on which he obtained the copy of the judgment and decree and came to a definite conclusion that in fact ex parte decree has been passed. The view which I have taken finds support from the decisions in the case of Panna Lal vs. Murari Lal (supra), Nagina Devi vs. Brijnandan & Lenka (supra).
17. Now reverting to the authority of the Supreme Court in the case of Gagandeep Pratishthan Pvt. Ltd. (supra), relied on by Mr. Dwivedi, same is clearly distinguishable. In the said case it was found that an interim order was passed without condoning the delay. To the same effect is the judgment of this Court in the case of Smt. Rukmini Sinha [2002(1) BLJ 758] (supra). Here on fact I have found that the application is not barred by limitation. As regards the decision of the Supreme Court in the case of Sri Lal Sah & Others vs. Gulabchand Sah & Others (supra), same is clearly distinguishable. In the said case on fact the Supreme Court found that defendant had knowledge of the decree, not on the day pleaded by him, on the basis of the materials on record and accordingly held that the application filed for setting aside the decree was barred by limitation. Here on facts the Court below has held that defendants was prevented by sufficient cause. I have also found that the application was filed within the period of limitation.
18. Lastly Mr. Dwivedi, submits that the finding recorded by the Court below that the defendant was prevented by sufficient cause relying, on the medical prescription is erroneous, it is well settled that this Court while exercising the power of revision upsets the finding of fact only when it comes to the conclusion that the finding recorded is perverse. I am of the opinion that the finding recorded is on consideration of relevant materials which does not call for interference in the revisional jurisdiction. In the result, I do not find any merit in the application and it is dismissed accordingly but without any order as to cost.
