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Parma Nand Chaudhary v/s Sarshwati Devi

    Civil Revision 440 Of 2004

    Decided On, 18 April 2006

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH

    For the Appearing Parties: ----------------------------.



Judgment Text

NAVANITI PRASAD SINGH, J.

(1.) The present revision application is directed against an order passed under Order 9 Rule 13 by which the court below has recalled ex party judgement and decree.

(2.) Petitioner was the plaintiff, the suit was filed for specific performance of an agreement to sell. The suit was decreed ex

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party in the year 1989. In 1999 an execution application was filed by the decree holder. In 2002 the application under Order 9 Rule 13 was filed by the defendant who had not appeared in the Suit. In the said application it was stated that he learnt that the plaintiff had obtain an ex party decree and was seeking its execution he immediately got an inspection done and from that discovery the ex party judgment and decree within a day application under Order 9 Rule 13 was filed.

(3.) On behalf of the plaintiff-petitioner it is first urged that the application should not be entertained in absence of an application for condonation of delay as in terms of Article 123 of the Limitation Act. The period of limitation being 30 days from the date of decree, the application was clearly barred and there being no application under Section 5, the delay could not be ignored and or condoned and therefore, the application ought to have been dismissed. In the said proposition he has relied on 1973 Patna 150 and 1977 Guwahati 51 as well as 2001 Supreme Court 279. I am afraid that the aforesaid judgments are not an authority for the purpose as canvassed. On bare reference, the Article 123 of the Limitation Act would show that the starting point for calculation of limitation are two fold; (i) the date of decree, and (ii) the date of knowledge of decree. The Act itself makes a distinction between date of decree and date of knowledge of decree. In the present case the opposite party had clearly pleaded total ignorance to all proceedings up to the date when he heard rumour and. sought for inspection of court records. Therefore, limitation has to be computed from the date of knowledge. Petitioner does not dispute, if limitation has to be calculated from the date of knowledge then the application was within time, still he submits that their ought to have been an application under Section 5. I am afraid the said contention cannot be accepted for the simple reason that an application under Section 5 is for the purpose of extending the period as prescribed, in other words, for condoning the delay. In the present case their being no delay application under Section 5 is not contemplated. Therefore, I do not find any substance in the first contention.

(4.) On behalf of the petitioner it is then urged that in view of second proviso to Order 9 Rule 13 irregularity in service of summon cannot be a ground for setting aside the ex party decree. Here again I cannot accept the submission for the simple reason that the proviso is not as has been submitted. The proviso provides that where the party otherwise had knowledge of the all proceedings, mere irregularity in service of summons would not vitiate the decree. Here, it is not the case of either party that the defendant had knowledge of the proceedings at any point of time and as such the proviso does not come into play, I accordingly find no merit in the application and I find that the trial court had committed no error of jurisdiction. The revision application is accordingly dismissed
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