Thratharu Namburipad v. Yohannan — 1953 DIGILAW 201 (KER)

Judgment :- 1. Additional second plaintiff is the revision petitioner. The revision petition is from an order allowing the petition of the 44th defendant to set aside ex parte decree in the case passed against the 18th defendant on 28.12.1115. The 18th defendant died on 18.4.1118. The 44th defendant was impleaded as his legal representative in execution. He applied on 27.11.1121 for setting aside the ex parte decree. The first court found that the summons was fully served on the 18th defendant and dismissed the petition. In appeal from that order the District Court found that the summons was not duly served. It was also held by that court that the application by the 44th defendant was made within 30 days of his knowledge of the decree. According to the revision petitioner the period of 30 days should be calculated from the date of the 18th defendant's knowledge of the decree and not that of his legal representative, the 44th defendant. Art. 164 of the Indian Limitation Act which applies to the case reads: "By a defendant for an order to Thirty days The date of the decree set aside the decree passed ex parte. or where the summons was not duly served, when the applicant has knowledge of the decree". The Article provides that in a case in which the summons was not duly served on the defendant the period of 30 days has to be calculated from the date when the applicant has knowledge of the decree. According to the learned District Judge, the word 'applicant' has to be interpreted as the person who actually makes the application, and in a case in which the application is made by the legal representative of a deceased defendant it is the date when that legal representative has knowledge of the decree and not the date when the original defendant had knowledge of the decree that would be the starting point of limitation. The learned judge has relied on Chitaley's Commentaries on the Limitation Act and the case reported in 38 Madras 442. 2. This is what Chitaley says at page 2532 (3rd Edition, Vol. III): "The knowledge of the decree referred to in the Article is that of the applicant. The learned judge has relied on Chitaley's Commentaries on the Limitation Act and the case reported in 38 Madras 442. 2. This is what Chitaley says at page 2532 (3rd Edition, Vol. III): "The knowledge of the decree referred to in the Article is that of the applicant. If the legal representative of a deceased defendant, against whom an ex-parte decree has been passed wishes to file an application to set it aside on the ground that the summons was not duly served on the defendant, he should do so within thirty days of his (ie., the applicant's) knowledge of the decree. But if the defendant himself has made such an application and on his death the legal representative continues the application, the date of knowledge of the legal representative is immaterial and it must be shown that the application by the defendant was made within thirty days of defendant's knowledge." In support of the first proposition the learned author has referred to a ruling of the Oudh Chief Court in 1925 Oudh 370 (Deoki v. Jugal Kishore). But a reading of the judgment in that case shows that such a view was not taken in that case. One Mt. Deoki, the legal representative of a deceased defendant, applied for setting aside an ex parte decree under O. IX, R.13 C.P.C. She averred that she came to know of the decree only when she was sought to be impleaded in execution as the legal representative of the deceased defendant. In disposing of the petition the trial court took into consideration two questions, namely, (1) whether the original defendant had notice of the date of hearing of the suit and (2) whether the applicant, legal representative, had come within 30 days of her knowledge of the decree. Both these questions were decided against the applicant and the application was dismissed. In appeal filed from this order the appellant court held that the applicant was not even entitled to file an application under O. IX, R.13 C.P.C. since she was not actually brought on record as the legal representative of the deceased defendant. This view was not accepted by the Chief Court. In appeal filed from this order the appellant court held that the applicant was not even entitled to file an application under O. IX, R.13 C.P.C. since she was not actually brought on record as the legal representative of the deceased defendant. This view was not accepted by the Chief Court. Dalar, J.C. observed thus: "It has been held by the Madras High Court in ILR 38 Madras at page 442 that the legal representative must come within 30 days of her knowledge of the decree under Art. 164 of the Limitation Act. So, if the legal representative waits till proceedings are completed under S. 50 (C.P.C.) his application for rehearing would be time barred. On the other hand, if he hastens to court before the usual dilatory proceedings in court are completed, he is told that he must wait outside. This cannot possibly be the law. The provisions of S. 146 (CPC) are very wide. If any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him. There is no reason why an application under O. IX, R.13 should be exempted from this general provision relating to procedure". This is the only question that was discussed in the case. The question whether in the case of an application under O. IX R.13 by the legal representative of a deceased defendant the period of limitation should be computed from the date of the legal representative's knowledge of the decree or from that of the original defendant's knowledge of the decree was not discussed in the case. It is only stated in the judgment that one of the questions considered by the trial court was whether the application was made within 30 days of the applicant's knowledge of the decree. This case cannot, therefore, be regarded as an authority for the view expressed by Chitaley. 3. As for 38 Madras 442 (namely, Venkatasubba Iyer v. Krishnamoorthy) in that case also this question did not come up for consideration. In that case the plaintiffs obtained an ex parte decree against the defendant on the 12th August 1912. On the third September the defendant died. On the 30th September his executor made an application to set aside the ex parte decree. In that case the plaintiffs obtained an ex parte decree against the defendant on the 12th August 1912. On the third September the defendant died. On the 30th September his executor made an application to set aside the ex parte decree. The executor has not taken out a probate and had not been made a party to the suit when he made the application. The trial court dismissed the application as barred by limitation under Art. 164 of the Limitation Act. That Court took the view that the right to make the application accrued to the defendant on the date of the decree, and that this right alone could be exercised by the executor. In appeal it was contended that Art. 164 would not apply to the case and that it was Art. 181 that applied. It was also argued that the word "defendant" in Art. 164 did not apply to a person occupying the position of an executor and that if the executor was a defendant within the meaning of the first column of Art. 164 time would run only from the date of the executor had knowledge of the decree. It was also pointed out that the word used in the third column was not defendant but'applicant'. This latter contention was met by White C.J. in the following words: "The short answer to the latter contention seems to me to be this. The alternative date applies only where the summons was not duly served and the party with reference to whom that provision was made is the original defendant. Here the summons was duly served on the original defendant. At any rate it has not been suggested it was not. The fact that he unfortunately died soon after the service does not render the service any less effective. The argument on behalf of the respondent was that "defendant" in Art. 164, reading that Article by the light of S. 146 of the Code of Civil Procedure includes an executor even if he is not, when the application is made, a party to the suit. The application here is made by the executor either under the powers given by S. 146 or powers already existing which are recognised by that section. That section was probably introduced on account of the conflict of authority in this matter. The application here is made by the executor either under the powers given by S. 146 or powers already existing which are recognised by that section. That section was probably introduced on account of the conflict of authority in this matter. In Ganoda Prosad Roy v. Sahib Narain Mukherjee (29 Calcutta 33) it was held that where a defendant against whom the decree has been passed ex-parte dies his legal representative when he has been brought on the record is competent to apply under S. 108 of the Code of Civil Procedure (O. IX, R.13 of the present Code) for an order to set aside the ex parte decree. In the Allahabad High Court a different view had been taken. It is now settled that where a defendant against whom an ex parte decree has been passed dies, his legal representative, if he has been made a party to the suit, can apply for an order to set aside the ex parte decree. But although the original intention of the legislature may have been to provide for a class of cases such as that which came before the Calcutta High Court in Ganoda Prosad Roy v. Sahib Narain Mukherjee, there is no reason, as it seems to me, why for the purposes of construing Art. 164 of the Limitation Act, we should restrict the application of S. 146 of the Code to the class of cases which it may be, the legislature had in mind when they enacted S. 146 i.e., cases where the legal representatives were on the record. On the true construction of Art. 164 read by S. 146 it seems to me that the word 'defendant' is wide enough to include the executor of the original defendant though he may not have been brought on the record when the application is made." The learned Chief Justice further observed: "If the executor had been made a party before he made his application to set aside the ex parte decree, but made the application after the expiry of 30 days from the date of the decree and Art. 164 had been pleaded, it seems to me the executor would have no answer. If the appellant is right in his contention that Art. 164 does not apply, the executor, though not on the record, is in a better position than if he were on the record. If the appellant is right in his contention that Art. 164 does not apply, the executor, though not on the record, is in a better position than if he were on the record. If he were on the record, he would be within the Article and would only have 30 days from the decree. Not being on the record, Art. 164 does not apply, and he can claim the benefit of Art. 181. That is the argument. I do not think that any such result was in the contemplation of the legislature. It may be that cases of hardship may arise by reason of there being only 30 days within which the executor who is on the record, or a party who can apply under S. 146 of the Code without being on the record can take action for the purpose of getting an ex parte decree against a deceased defendant set aside. But we have to look to the enactments". This is all that was held in the case. The question whether in the case of an application by the legal representative of a deceased defendant to set aside an ex parte decree, it is the date of the legal representative's knowledge of the decree or that of the original defendant's knowledge of the decree that should be the starting point of limitation was not discussed in this case. 4. We are clearly of opinion that in the case of an application by the legal representative of a deceased defendant to set aside a decree passed ex parte against the defendant the period of limitation has to be calculated from the date of the defendant's knowledge of the decree when the summons was not duly served on him and not from the date of the legal representative's knowledge of the decree. To take a different view will lead to results which could not have been intended by the legislature. If a defendant against whom an ex parte decree is passed does not apply within 30 days from the date of his knowledge of the decree in a case in which summons was not duly served on him, his application will be barred by limitation. If a defendant against whom an ex parte decree is passed does not apply within 30 days from the date of his knowledge of the decree in a case in which summons was not duly served on him, his application will be barred by limitation. But if months or years after his death his legal representative comes forward with an application to set aside the ex parte decree he will be entitled to have the decree set aside if he proves that he got knowledge of the decree only within 30 days of the application. We do not think that such an incongruity was intended by the legislature. The word 'applicant' in the third column of Art. 164 can refer only to the defendant mentioned in the first column. The word 'applicant' is defined thus in S. 2(1) of the Limitation Act: "'Applicant' includes any person from or through whom an applicant derives his right to apply". In the case of the legal representative of a deceased defendant the person from or through whom he derives his right to apply under O. IX, R. 13, CPC is the deceased defendant. In such a case the word 'applicant' in the third column of Art. 164 can apply only to the defendant from or through whom the legal representative derives his right. What S. 146 of the Code of Civil Procedure provides is that where an application may be made under the Code by any person that application may be made by one claiming under him. It implies that the person who makes the application cannot have a larger right than the one under whom he claims. If the defendant's right to apply under O. IX, R.13 had become barred under Art. 164 of the Limitation Act by reason of the fact that he did not make the application within 30 days of the date of his knowledge of the decree it cannot be said that that right will revive on his death and that his legal representative will get a fresh period of limitation computed from the date of his knowledge of the decree. 5. 5. We are of opinion that in this case the material date for the purpose of computing the period of limitation under Art. 164 of the Limitation Act (Indian) is the date of the 18th defendant's knowledge of the decree and not that of his legal representative, the 44th defendant. The learned District Judge has not considered the question as to whether the 18th defendant had knowledge of the decree. We, therefore, set aside the order of the court below and send back the case to that court for fresh disposal according to law and in the light of the observations made above. We make no order as to costs. Allowed.