S. Ameeran Sahib v. Somanatha Nadar — 1972 DIGILAW 633 (MAD)

Order.- The Defendants in the suit are the appellants in C.M.A. No. 187 of 1972. and the petitioners in C.R.P. No. 1055 of 1972. The suit was filed against the defendants for recovery of a sum of Rs.11,471-56 P. on two heads, i.e., one on a pro-note and another on dealings. On 27th February, 1971, an ex parte decree had been passed. On 3rd September, 1971, the defendants were served with notice in the execution petition. After coming to know of the Execution Petition, the defendants on 4th September, 1971 filed two Interlocutory Applications (1) I.A. No. 1909 of 1971 for the purpose of excusing the delay in filing the application for setting aside the ex parte decree ; and (2) I.A. No. 1910 of 1971 for setting aside the ex parte decree, dated 27th February, 1971. The trial Court dismissed both these applications. The defendants have filed C. M. A. No. 187 of 1972 against the decision in I.A. No. 1910 of 1971, and C. R. P. No. 1055 of 1972 against the decision in I.A. No. 1969 of 1971. 2. Mr. Narayanaswami, the learned Counsel for the appellants and the petitioners respectively in the abovesaid cases submitted that as per Article 123 of the Limitation Act, the time to file the petition to set aside the ex parte decree will run only from the date of knowledge of the decree. He is also aware that if the summons have been duly served, the time will run from the date of the decree. Hence, Mr. Narayanaswami has submitted that the summons were not duly served inasmuch as the plaint copy was not attached to the summons. He cited the decision in Gyanammal v. Abdul Hussain Sahib1. He is also aware that if the summons have been duly served, the time will run from the date of the decree. Hence, Mr. Narayanaswami has submitted that the summons were not duly served inasmuch as the plaint copy was not attached to the summons. He cited the decision in Gyanammal v. Abdul Hussain Sahib1. In that decision, a Bench of our High Court dealing with the service of summons duly upon the defendant has observed that the defendant can dispute the due service on the ground that the summons in the suit was not really served upon him but upon somebody else, or that what was served upon him was not the summons in the suit, or that it did not give the correct date or some other essential information about the suit, or that it was not accompanied by a copy of the plaint in the suit concerned, so that, although in a sense he was personally served, he was not provided with the knowledge of the claim against him, which is the object of the service. It is further stated in the said decision that even if the defendant is served personally, it is open to him to come to the Court and show that was not really due service because it did not really give him knowledge of the claim against him. 3. As far as the present case is concerned, the defendants have specifically raised the plea stating that they were not served with a copy of the plaint. The lower Court has failed to consider this point except stating that the defendants had knowledge of the suit. Mere knowledge of the suit is not enough to disentitle the defendants from filing a petition to set aside the ex parte decree beyond a period of thirty days from the date of the decree. The essential requirement is that the defendants must be aware of the date of the decree if the summons were not duly served upon them. No doubt, Mr. Narayanaswami, has further contended that due to the fraud practised by the plaintiff, they did not take serious note of the alleged suit. The essential requirement is that the defendants must be aware of the date of the decree if the summons were not duly served upon them. No doubt, Mr. Narayanaswami, has further contended that due to the fraud practised by the plaintiff, they did not take serious note of the alleged suit. This, he states, on the ground that the defendants thought that a suit has been filed only on a promissory note inasmuch as Exhibit B-3 the suit notice, dated 23rd October, 1969 mentions only the money, due on the pro-note ; but unfortunately the suit is not only based upon the promissory note but also on certain dealings. This, according to the defendants, is not a bona fide claim. But I do not think that that point has any relevancy for the present case and it is unnecessary for me to deal with the same since that will not form a ground for setting aside the ex parte decree. 4. In the decision in Pichai Ammal v. Vellayya2 , in paragraph 9 it is held: "Article 164 of the Limitation Act, provides for a period of thirty days for an application to set aside an ex parte decree. Time will begin to run from the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree. In the present case the concurrent finding of both the Courts below is that the first defendant deliberately refused to receive summons. It would follow that he had constructive notice of the contents of the registered cover which was tendered to him by the postman, that is to say, he had knowledge of the date of the hearing of the suit. Knowledge of the date of hearing of the suit does not necessarily mean knowledge of the fact that a decree had been passed on that date or subsequent to that date. For the application of Article 164 of the Limitation Act, it is necessary to ascertain when the defendant applying for setting aside the ex parte decree had knowledge of the decree. Mere knowledge of the date of the suit would not be enough for that purpose..........". 5. For the application of Article 164 of the Limitation Act, it is necessary to ascertain when the defendant applying for setting aside the ex parte decree had knowledge of the decree. Mere knowledge of the date of the suit would not be enough for that purpose..........". 5. Thus, it is clear from the abovesaid decision that if the defendants are able to establish that the notice has not been duly served, it is enough that they file a petition to set aside the ex parte decree within thirty days from the dat;e of knowledge of the passing of the decree. In this case, according to the defendants, they came to know of the passing of the decree only when the notice of the execution petition was served upon them on 3rd September, 1971. The trial Court, on the basis of service of summons and also observing that the defendants were aware of the suit being filed, dismissed both the applications filed by them. But the decision in Pichai Ammal v. Vellayya1, is very clear authority for the proposition that when notice is not duly served, the defendant against whom an ex parte decree has been passed, is entitled to file a petition to set aside the ex parte decree within thirty days from the date of knowledge regarding the decree passed against him. The corresponding Article in the present Limitation Act, for Article 164 is Article 123. The wordings are the same in both these Articles. I am satisfied that the defendants have correctly proved that the notice has not been duly served inasmuch as the plaint copy has not been sent along with the notice. It complies with the observations contained in the decision in Gyanammal v. Abdul Hussain Sahib2, wherein this Court has stated certain circumstances to show that the notice has not been duly served. Article 123 contemplates only due service of notice. In view of the fact that there was no due service of notice, the petition filed immediately after they came to know of the passing of the ex parte decree is within time. The trial Court has failed to exercise its jurisdiction inasmuch as it has completely ignored the provisions contained and the interpretation of Article 123 of the Limitation Act. In these circumstances C. R. P. No. 1055 of 1972 is allowed. 6. Mr. The trial Court has failed to exercise its jurisdiction inasmuch as it has completely ignored the provisions contained and the interpretation of Article 123 of the Limitation Act. In these circumstances C. R. P. No. 1055 of 1972 is allowed. 6. Mr. Sivamani, the learned Counsel for the appellants in C. M. A. No. 187 of 1972 now brings to my notice that an appeal, C. M. A. No. 9 of 1972 was filed against the decision in LA. No. 1910 of 1971, before the District Judge of Coimbatore (East) at Erode and the same was dismissed on 21st April. 1972. I find from that judgment that the District Judge has not considered the points which I have discussed in the paragraphs supra. whatever it might be, the District Court had no jurisdiction to entertain the Civ 1 Miscellaneous Appeal and as such the judgment and decree pased by the District Judge have to be construed as null and void. In any event, even assuming that the District Judge has the appellate power, the present Civil Miscellaneous Appeal can be converted as Civil Revision Petition and the same can be disposed of. In the interests of justice, I do not think that there is any need to technically convert the Civil Miscellaneous Appeal into Civil Revision Petition inasmuch as the order passed by the District Judge of Coimbatore (East) at Erode in C.M.A. No. 9 of 1972 was without jurisdiction. In these circumstances and for the reasons mentioned in the paragraph supra, C.M.A. No. 187 of 1972 is allowed. 7. The result is that the ex parte decree passed in O.S. No. 28 of 1971 is set aside and the suit will be restored to the file of the Sub-Court, Erode, and will be disposed of afresh according to law. There will be no order as to costs. P.S.P. --------- Petition allowed.