Judgment :- 1. This revision petition is directed against an order setting aside the exparte decree passed in O.S. No. 2353 of 1991 on the file of the Seventh Assistant Judge, City Civil Court, Madras. The undisputed facts are as follows: The petitioners herein filed an original petition for leave to file a suit as indigent persons in this Court on the original side on 10-10-1975. In the original petition, notice was ordered to the respondents therein, the 8th respondent therein being the respondent herein. He entered appearance through counsel on 29-6-1976. After the petition was ordered, the suit was registered as C.S. No. 389 of 1977. Once again, the respondent engaged counsel and T. Raghavan. T. Scshadri and Mailsami filed vakalat for him on 11-4-1978. On the passing of the Tamil Nadu Civil Courts Act 34 of 1980 enhancing the pecuniary jurisdiction of the City Civil Court and providing that the suits pending in this court of the value below the pecuniary limits mentioned therein, shall stand transferred to the City Civil Court, the proceedings in the suit were forwarded to the City Civil Court. The papers were received in the City Civil Court on 2-7-1981 and the suit was numbered there as O.S. No. 2353 of 1981. It was called in the Second Additional Court. A copy of the plaint was filed with suitable amendments in view of the change of forum on 11-8-1981. The Court directed fresh summons to the 2nd defendant and notice to counsel for other defendants returnable on 11-9-1981. The matter was being adjourned for the same purpose till 19-9-1981 on which date the matter was posted to 30-9-1981. On 30-9-1981, the 7th defendants counsel filed vakalat. The Court recorded that fresh summons had been issued to the second defendant and return thereof was to be awaited. With regard to defendants 3, 4, 10, 12, 14 and 15, the Court adjourned the matter to 22-10-1981 for filing vakalat and written statement. On 22-10-1981 the Court recorded that summons issued to the 2nd defendant was returned unserved for want of residence and fresh summons was directed to the correct address. It was also recorded that vakalat and written statements were filed for defendants 3, 4, 5, 10, 11, 12, 15 and 16. The further entry contained a direction to issue fresh summons to defendants 2, 6, 10 and 13. It was also recorded that vakalat and written statements were filed for defendants 3, 4, 5, 10, 11, 12, 15 and 16. The further entry contained a direction to issue fresh summons to defendants 2, 6, 10 and 13. As regards others, including the respondent herein it was adjourned to 18-11-1981 for written statement On 18-11-1981 the matter was adjourned to 15-12-1981 with a similar entry. On 15-12-1981 it was recorded that the 9th defendants counsel had filed vakalat and the 6th defendant was set ex parte as he was absent in spite of service and fresh summons was directed to defendants 2, 10 and 13. Time for filing written statement was granted to others. The names of counsel for defendants 3, 10, 15 and 17 were noted. The matter was adjourned to 19-1-1982. From 19-1-1982 it was adjourned to 5-2-1983 with similar entries. On 24-2-1983 the suit was transferred to the 7th Assistant Judge to be called along with O.S. No. 1018 of 1979 on 25-2-1983. On the later date the matter was adjourned for written statement of defendants to 11-4-1983. It was further adjourned to 15-6-1983, 30-6-1983 and various other dates upto 18-10-1983. On 18-10-1983, the following entry is found: “It is seen from records that written statement of defendants 2, 3, 8, 10, 12, 13, 14 and 17 were not filed. T.E. 3-11-83”. By similar entries, time was being extended from that date onwards upto 3-4-1986. On that date, it was entered that the written statement of defendants 2, 8, 10, 12, 13, 14, 17 and 24 to 26 were not filed and they were called absent and set exparte. The matter was posted to 7-4-1986 for issues. Ultimately, the suit was decreed on 13-5-1986. 2. The respondent herein filed I.A. 13967 of 1988 on 1-8-1988 under O. 9, R. 13, C.P.C. for setting aside the decree passed on 13-5-1986. In the affidavit filed in support of the application he claimed that he had no knowledge of the transfer of the suit to the City Civil Court and the subsequent proceedings there-in. According to him, he came to know of the matter only on 28-7-1988, pursuant to certain notices issued by the petitioners in other proceedings claiming to be Receivers. The application was opposed by the petitioners therein The trial Court has accepted the application and passed an order setting aside the exparte decree. According to him, he came to know of the matter only on 28-7-1988, pursuant to certain notices issued by the petitioners in other proceedings claiming to be Receivers. The application was opposed by the petitioners therein The trial Court has accepted the application and passed an order setting aside the exparte decree. The order was passed on 7-2-1991. It is the said order that is challenged in this revision petition. 3. The following reasons are given by the trial Court for setting aside the exparte decree: (a) It is not proved that after the suit was transferred from the High Court to the City Civil Court, notice was given to the respondent herein. (b) There is no entry that the respondent appeared before the Court in the proceedings or his counsel appeared in the matter, (c) The facts pleaded by the petitioners herein to show that the respondent had notice of the proceedings and also knowledge of the same have not been proved. I will give the details a little later, (d) It is not proved that the respondent is aware of the transfer of the proceedings from the High Court to the City Civil Court, (e) It has been held in Krishnaji v. Marnamrao A.I.R. 1977 Bombay 36 that a vakalat filed in one Court will not hold good if the proceeding is transferred to another Court, (f) It has been held in Kishore Kumar v. Basudeo Prasad A.I.R. 1977 Patna 131 that after the proceeding is transferred to a Court, the transferee Court shall issue notice to the parties once again. Hence, there is sufficient reason for setting aside the exparte decree. 4. Some interesting questions of law have been argued before me by counsel on both sides. The main contention of the petitioners is that the application for setting aside the ex parte decree is barred by limitation and in the absence of any application for condonation of the delay under S. 5 of the Limitation Act, the Court below had no jurisdiction to set aside the exparte decree. It is also argued that there is no rule prescribing the issue of notice of fresh summons to parties after the proceeding is transferred from one court to another if the parties had been served already while proceedings were pending in the transferor Court. It is also argued that there is no rule prescribing the issue of notice of fresh summons to parties after the proceeding is transferred from one court to another if the parties had been served already while proceedings were pending in the transferor Court. It is further argued that on the facts of this case, there is ample evidence to show that the respondent had knowledge of the proceedings in the City Civil Court and counsel were also appearing for him and taking time to file written statement. 5. Per contra, it is contended by the respondent that the proceeding in the City Civil Court is entirely a fresh suit and once it is numbered in the City Civil Court, fresh summons ought to have been issued as if the suit has been instituted for the first time in that court. According to respondents, though the court directed notice to the counsel, no such notice was issued in fact, and the respondent was never made aware of the proceedings in the City Civil Court. It is argued that the second part of the third column of Art. 164 of the Limitation Act would apply and the starting point of limitation is only the knowledge of the respondent of the decree. As the respondent got knowledge of the decree only on 28-7-1988, his application filed on 1-8-1988 was well within time and it was not barred by limitation. 6. Before considering the questions of law argued by counsel on both sides, I will discuss the evidence on record and give my findings on the facts. I am quite aware that this is a revision petition and S. 115 C.P.C. contains limitations within which this Court should act under that section. 6. Before considering the questions of law argued by counsel on both sides, I will discuss the evidence on record and give my findings on the facts. I am quite aware that this is a revision petition and S. 115 C.P.C. contains limitations within which this Court should act under that section. As I am of the view that in the present case, the order of the court below is vitiated by its failure to advert itself to the relevant materials on record, the finding given by the court below is perverse and in that situation, it is open to this Court to interfere under S. 115, C.P.C. A Full Bench of the Allahabad High Court in Shambhu Dayal v. Basdeo Sahai A.I.R. 1970 Allahabad 525 has ruled thus: “If a court omits to consider a material on record having a bearing (in this case the material had a vital bearing) on the question to be decided by it or fails to apply its mind to or to record a finding on a crucial aspect of the case which cannot be ignored in the determination of the controversy before the Court, it certainly acts illegally or at least with material irregularity in the exercise of its jurisdiction. I may refer’ in this connection to Sher Singh v. Jt. Director of Consolidation 1969 All L.J. 38.” 7. It has also been pointed out by this Court in Arukkani Ammal v. Gurusamy (1987) I M.L.J. 32 = 100 L.W. 707. “The power of the Court to set aside an exparte decree should be exercised judicially, and unless sufficient cause is shown for non-appearance on the day on which the suit is fixed for hearing, there will be no jurisdiction or justification for the trial Court to set aside the ex parte decree”. The tendency on the part of litigants to take exparte decrees casually and make applications at leisure to set them aside should be curbed and the court should scrutinise the same with proper care having regard to the stringent provisions of S. 5 of the Limitation Act. 8. In the present case, the respondent has given evidence as P.W. 1 in support of his version that he had no knowledge of the proceeding before 28-7-1988. The court below has token it for granted that his ipse dixit should be accepted without weighing his evidence against the admitted facts and circumstances. 8. In the present case, the respondent has given evidence as P.W. 1 in support of his version that he had no knowledge of the proceeding before 28-7-1988. The court below has token it for granted that his ipse dixit should be accepted without weighing his evidence against the admitted facts and circumstances. A Court of fact should always consider, in the first instance, whether the deposition of a party should be believed or not. For arriving at a conclusion on that aspect of the matter, the court should take into account the entire deposition and the various other circumstances available on record and conclude whether his evidence is worthy of acceptance. In the present case, the trial Court has failed to take note of certain clinching admissions made by the respondent as P.W. 1. He has stated that he engaged Mr. Raghavan as counsel, for him in the High Court. He has admitted that when the matter was in the High Court he used to meet his Advocate Mr. Raghavan very often. It should be remembered that the matter was pending in the High Court from 1975 to 1981. He has also admitted that after the case was transferred to the City Civil Court Mr. Raghavan and two others were his Advocates. In fact, he has added an emphasis by using the Tamil word which could be equated with the word ‘only’. The sentence reads thus: Tamil He has further admitted that his Advocates would give him information as to whatever takes place in the case in the following words:— Tamil 9. After making the above admissions, he has probably realised that he has made some damaging statements. Hence, he has added that he met Mr. Raghavan last in 1978 and from 1978 to 1988, he did not meet the three Advocates. That subsequent version is clearly contradictory to the earlier version that he used to meet his Advocate Mr. Raghavan very often when the matter was pending in the High Court. I have already pointed out that the matter was pending till 1981. Having realised that his statement that he was meeting Mr. Raghavan till 1981 would cause damage to his case, he has chosen to add that he did not meet him after 1978 till 1988. 10. He states that his Advocates never gave him any information about the suit. I have already pointed out that the matter was pending till 1981. Having realised that his statement that he was meeting Mr. Raghavan till 1981 would cause damage to his case, he has chosen to add that he did not meet him after 1978 till 1988. 10. He states that his Advocates never gave him any information about the suit. He has also stated that after coming to know of the ex parte decree, he did not enquire his previous Advocates meaning thereby he did not enquire Raghavan, Seshadri and Mailsami. This statement is quite unnatural and wholly unbelievable. If the respondent was not in the know of things before 1988 and for the first time he came to know that an exparte decree had been passed against him in the City Civil Court, Madras, the normal and natural conduct of his would have been to immediately rush to Raghavan, Seshadri and Mailsami or to any one of them and enquire them as to how the City Civil Court came to pass a decree when his suit was pending only in the High Court. The reason given by him in cross-examination is he having engaged a new Advocate, he did not go to them and enquire them. This is unbelievable on the face of it. He would have first ascertained as to why he was not informed by his Advocates about the transfer of the proceedings. He would have ascertained as to what prevented them from filing a written statement after getting instruction and why he was kept in the dark throughout. He would have certainly gathered those facts in order to include them in the affidavit to be filed by him in support of his application to set aside the exparte decree. At least his new advocate would have advised him to ascertain those facts from his previous advocates and learnt why they did not communicate the factum of transfer to the respondent herein. 11. In this background the non-examination of any of the advocates, who had filed vakalat for the respondent in the High Court, is very material as their evidence will have a bearing on the acceptability of the evidence of the respondent in the present proceedings. As none of them has been examined by the respondent adverse inference should be drawn by the Court against the respondent. As none of them has been examined by the respondent adverse inference should be drawn by the Court against the respondent. It has been held by a Division Bench of this Court in Union of India rep. by the Postmaster General, Madras v. Amjad Mian (1972) TNLJ. 448 that non-examination of material witnesses, which will have serious impact on the assessment of the truth of the evidence adduced by the party should be considered by the Court as a default on the part of the party leading to an adverse inference against him. Applying the test laid down by the Division Bench the Court should draw an adverse inference against the respondent from the factum of non-examination of any of his advocates in these proceedings, to explain as to how and why they did not give him any information about the transfer of the proceedings to the City Civil Court. If his version is true he ought to have examined one of them at least. Obviously his version is not true particularly in the face of his admission that his advocates would have given him information of anything that happens in this case. 12. He admits specifically that he knows the procedure of courts in the following words: is not an ignoramous or illiterate person. 13. There is considerable force in the submission of learned counsel for the petitioners that time was being taken on behalf of the respondent in court for filing a written statement from time to time. It is seen from the records that on 19-9-1981 the court directed issue of fresh summons to the second defendant and notice to counsel for other defendants. It is the case of the petitioners that such a notice was issued not to the counsel but to the respondent and the other parties themselves. A copy of the notice is produced and marked as Exhibit R-5. It bears the date 23-9-1981. It has been issued by counsel for the petitioners M. Sham Das and M. Thulasi Das. The notice is addressed to all the defendants. Along with Exhibit R-5 a postal receipt issued by the post office bearing the date seal 26-9-1981 has been produced. It shows that a registered tapal was sent on 26-9-1981 to Mr. Thilak Kumar, the respondent herein; A postal acknowledgment has been produced as Ex. R-6. The notice is addressed to all the defendants. Along with Exhibit R-5 a postal receipt issued by the post office bearing the date seal 26-9-1981 has been produced. It shows that a registered tapal was sent on 26-9-1981 to Mr. Thilak Kumar, the respondent herein; A postal acknowledgment has been produced as Ex. R-6. That bears a signature which has not been identified by any party. The respondent has naturally pleaded that he does not know whose signature it is. According to him it is not the signature of any member of his family. Below the signature the date 3-10-1981 is found. Below that it is written that it is for P. Thilak Kumar. The respondent having denied the signature found in Ex. R-6 and the witness examined on the side of the petitioners, viz., R.W. 1 not being in a position to say as to who signed the postal acknowledgment, the Court below has rejected Exs. R-5 and R-6 as not affording any evidence in support of the petitioners case. That rejection is clearly erroneous in as much as the court below has overlooked the presumption available under S. 27 of the General Clauses Act. Under that Section if a post is sent by registered post then it must be presumed that it was sent to the addresses properly unless the contrary is proved. It is certainly open to the respondent to have proved the contrary. The question is whether he has proved the contrary by his ipse dixit. I have already pointed out the circumstances showing that the respondent is not a man speaking the truth. When it is found by the court that the respondent does not speak the truth before court his evidence that the signature found in Ex. R-6 is not that of any member of his family should not have been accepted and it should have been rejected. 14. I am not relying only on that circumstance. The more relevant fact will be the change in the nature of entries made by the court in the notes paper thereafter. On 19-9-1981 the court directed notice. Ex. R-5 is issued on 26-9-1981 though it bears the date 23-9-1981. Obviously, counsel had acted in accordance with the direction given by the Court. The more relevant fact will be the change in the nature of entries made by the court in the notes paper thereafter. On 19-9-1981 the court directed notice. Ex. R-5 is issued on 26-9-1981 though it bears the date 23-9-1981. Obviously, counsel had acted in accordance with the direction given by the Court. On 30-9-1981 when the matter was called before the Court the acknowledgement had not been received by counsel as it was served on the party only on 3-10-1981. Hence the entry in the notes-paper on 30-9-1981 does not make any reference to the eighth defendant, while it refers to defendants 7, 3, 10, 12, 14, 15 and 4. The matter was adjourned to 22-10-1981 on which date in all probability, counsel would have informed the court about the receipt of the acknowledgment and I am of the view that on that day somebody had represented the eighth defendant and prayed for time to file a written statement. That is why the entry found on 22-10-1981 is to the effect that time for written statement was being granted to the defendants other than defendants 2, 6, 10 and 13 for whom fresh summons was directed by the Court. The matter was adjourned to 18-11-1981 and on that date also time was granted for filing written statement to several defendants including the eighth defendant Similar entries are found upto 18-10-1983 by which date the matter has come to the court of the 7th Assistant Judge. He found on that day that written statement had not been filed by some of the defendants including the eighth defendant and he extended the time till 3-11-1983. It was only on 3-4-1986 when it was found by the court that no written statement was filed, the eighth defendant and some others were called absent and set exparte. Hence the nature of the entries found in the notes-paper show that there was a change in the situation after 30-9-1981. The acceptability of the version of the petitioners with regard to Exs. R-5 and R-6 should have been considered by the court below in the background of the above entries. The court would have come to the conclusion very easily that Exs. R-5 and R-6 are true particularly when there is a presumption available under S. 27 of the General Clauses Act. The contrary has not been proved by the respondent as P.W. 1. 15. The court would have come to the conclusion very easily that Exs. R-5 and R-6 are true particularly when there is a presumption available under S. 27 of the General Clauses Act. The contrary has not been proved by the respondent as P.W. 1. 15. I must also point out that Raghavan, Seshadri and Mylsami are advocates practising in this Court with a good reputation and they are not known to have allowed a matter to go by default. To my knowledge they will fight for the case of the client and they will not let down any client. Hence the version of the respondent that his advocates did not inform him about the transfer of the proceedings to the City Civil Court is hardly believable. As pointed out already he has himself admitted that they would inform him of every development in the case. 16. The next circumstance on which reliance is placed by the petitioners is the notice issued by their counsel to the tenants occupying the building purchased by the respondent herein which is the subject matter of the suit. After the decree was passed on 13-5-1986 a notice is issued by their counsel M. Thulasi Das on 27-5-1986 under ‘certificate of positing’ to eight persons who are said to be the tenants occupying the building bearing No. 19, Old No. 14, New Thandavaraya Mudali St., Purasawalkkam, Madras -7. One of them is Mr. Venugopal Chetty. Admittedly, this Venugopal Chetty is the respondents father-in-law. He has admitted in his evidence that Venugopal Chetty is living in the said premises. According to him he is not a tenant but he is living there in order to take care of the maintenance and other furnitures in the building. The notice issued by counsel is marked as Ex. R-7 and the certificate of posting as Ex. R-8. There is no reason to reject the same. Taking the documents along with the evidence of R.W. 1, it has to be held that the notice was issued to Venugopal Chetty and others on 27-5-1986 soon after the passing of the decree. There is no reason to think that the said Venugopal Chetty or the other tenants would not have informed the respondent about the decree since they received the notice. The court below is in error in rejecting the evidence afforded by Exs. R-7 and R-8. 17. There is no reason to think that the said Venugopal Chetty or the other tenants would not have informed the respondent about the decree since they received the notice. The court below is in error in rejecting the evidence afforded by Exs. R-7 and R-8. 17. There is one other factor which has to be taken into account. The petitioners have produced a copy of the sale deed under which the respondent has purchased the property from the Official Assignee, Madras, on 18-1-1975. When the respondent was confronted with the said document he has deposed that the document is a copy taken by him and handed over by his advocates to one Sarvapalli Balaiah Chettiar. The case of the petitioners is that there was a talk of compromises after the passing of the decree between the petitioners and the respondent and in that connection Sarvapalli Balaiah Chettiar, who is admittedly a close relation of the respondent, was trying to mediate. According to the respondent, the copy was given to Mr. Balaiah Chettiar by his advocate as the said Balaiah Chettiar wanted to see the sale deed. He has not stated the purpose for which Balaiah Chettiar wanted to see the sale deed and the time at which he wanted to see it He does not give any specific explanation as to why Balaiah Chettiar got a copy of the sale deed from him. More than that, the respondent has no explanation whatever for the production of the document by the petitioners in the court. Admittedly, there is no enmity between Balaiah Chettiar. and the respondent. He is a close relative. The respondent denies the suggestion that the document was given to the petitioners by Balaiah Chettiar. But he has no explanation as to how the petitioners have produced the document. If a document which was in the possession of a close relative of the respondent has been produced by the petitioners there must be a good reason therefore. That reason is given by the petitioners. There is no reason to reject that version of the petitioners that there was a talk of compromises through Balaiah Chettiar after the passing of the decree. That also shows that the respondents version that he was never aware of any of these proceedings till 28-7-1988 is absolutely false. 18. That reason is given by the petitioners. There is no reason to reject that version of the petitioners that there was a talk of compromises through Balaiah Chettiar after the passing of the decree. That also shows that the respondents version that he was never aware of any of these proceedings till 28-7-1988 is absolutely false. 18. The evidence of the respondent is that he never enquired any of his three advocates as to whether a written statement should be filed in the suit and whether they had filed a written statement. That is clearly not acceptable and too big a pill to be swallowed. Hence I hold that the respondent was fully aware of the transfer of the proceedings to the City Civil Court and the pendency thereof in the City Civil Court till 1986 and the passing of the decree therein. His version that he came to know of the same only on 28-7-1988 is false. Therefore, his application to set aside the ex parte decree is not only barred by limitation but also unsustainable as there is no explanation by him as to why he did not appear before court on the date of hearing. 19. Having regard to the above circumstances referred to by me I have no hesitation to hold that the findings given by the trial court and the reasons therefore as set out earlier are, to say the least, perverse. Those findings have to be set aside. 20. Now I will proceed to discuss the question of law. O. 9. R. 13, C.P.C. provides for setting aside ex parte decrees on two grounds; (1) the summons in the suit was not duly served, and (2) the party was prevented by any sufficient cause from appearing when the suit was called on for hearing. By establishing any one of the aforesaid circumstances it is possible for a defendant to get the ex parte decree set aside. The Limitation Act gives the defendant time for filing an application to set aside the ex parte decree. Under Act of 1908 Art. 164 provided as follows: Description of application Period of limitation Time from which period begins to run 164. By a defendant, for an order to set aside a decree passed ex-parte . Thirty days The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree. Under Act of 1908 Art. 164 provided as follows: Description of application Period of limitation Time from which period begins to run 164. By a defendant, for an order to set aside a decree passed ex-parte . Thirty days The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree. Column (3) takes note of the two circumstances set out in O. 9, R. 13, C.P.C. With regard to the second circumstance, namely, the defendant had sufficient cause to be absent, the starting point for limitation was the date of the decree. With regard to the other circumstance the starting point was the date on which the applicant had knowledge of the decree. Art. 169 thereof provided for filing an application for the re-hearing of an appeal heard ex-parte . In the third column relating to time from which period begins to run, a similar provision was there as in Art. 164. But the expression used was ‘notice’ instead of summons. It is too well known that the Civil Procedure Code uses the expression ‘summons’ in relation to suits and ‘notice’ in relation to appeals. When the new Limitation Act, 1963 (Act No. 36 of 1963) was enacted, both the Articles 164 and 169 of the old Limitation Act were combined and brought into one Article, viz., Art. 123. It is as follows: Description of application Period of limitation Time from which period begins to run 123. To set aside a decree passed exparte or to re-hear an appeal decreed or heard ex parte. Thirty days The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. The first column relates to setting aside a decree passed ex parte and re-hearing an appeal decreed or heard ex parte. Obviously the first part refers to an appeal. Correspondingly in the third column the expression used is summons or notice. ‘Summons’ must relate to suits and ‘notice’ must relate to appeals. Here again two starting points are provided. One for a case in which the summons or notice had been duly served. In this case the starting point is the date of the decree. Correspondingly in the third column the expression used is summons or notice. ‘Summons’ must relate to suits and ‘notice’ must relate to appeals. Here again two starting points are provided. One for a case in which the summons or notice had been duly served. In this case the starting point is the date of the decree. The other is for a case in which summons or notice was not duly served for which the starting point is the date of knowledge of the decree. 21. In R.M.T.S.S. Dhanasekaran v. State Bank of India (1972) TNLJ. 448 Ramanujam, J. has referred to the two grounds on which an ex parte decree could be set aside under O. 9, R. 13, C.P.C. In the case before him no question of limitation was raised. He had no occasion to consider either Art. 164 of the old Limitation Act or Art. 123 of the new Act. 22. A Division Bench of this Court dealt with Art. 123 of the Limitation Act of 1963 elaborately in International Cotton Traders v. Narayanaswami 1978-2-M.L.J. 608 = 91 L.W. 575. The following passage in the judgment brings out the position in law very clearly. At page 610 it is stated thus: “Thus, the starting points of limitation are two. One is the date of the decree and the other is the date of the knowledge of the decree. With reference to the second, the condition to be satisfied is that no summons or notice should have been duly served. Thus, it is clear that a person applying for setting aside an ex parte decree can claim the period of limitation to commence from his knowledge of the decree only in a case where the summons or notice was not duly served. In other cases, limitation commences from the date of decree itself’. 23. The expression “summons” used in the third column of Art. 164 of the old Act has been the subject matter of consideration in several cases. In other cases, limitation commences from the date of decree itself’. 23. The expression “summons” used in the third column of Art. 164 of the old Act has been the subject matter of consideration in several cases. In Tara Chand v. Ram Chand 1978-2-M.L.J. 608 = 91 L.W. 575 it was held that the summons referred to in Art. 164 was the summons for the first hearing of the case, and there was no essential difference between the case where a suit was adjourned owing to the absence of the presiding officer or some other cause and a case in which a suit remanded for retrial by the appellate Court. It was pointed out that the underlying principle in such cases was that where the existence of the suit has been brought to the notice of the defendants by due service of a summons on them, it is their duty thereafter to inform themselves of what is being done in the case (underlining by me). 24. In Manindra Chandra Datta v. Churamani Thata AIR 1935 Peshawar 7, a Division Bench of the High Court of Assam has held that once summons had been served in a suit the starting point of limitation would be the date of decree and not the date of knowledge of the decree. 25. In Sodhi Harnam v. Sodai AIR 1949 Assam 5 a Division Bench of that Court held that the summons referred to in Art. 164 was the summons issued in the first instance and not to a notice issued to parties subsequently whether such notices were necessary in law or not. The facts of the case are almost similar. The defendant had received summons of the first hearing. The suit was thereafter transferred. It was held that the starting point of limitation for setting aside the ex parte decree was the date of the decree and not the date of knowledge. Their Lordships held that unless the first part of column 3 was excluded there was no question of invoking the second part. They placed reliance on the judgments in Mt. Lal Devi v. Amar Nath AIR 1954 Punjab 137; Surjit Singh v. C.J. Torrie AIR 1920 Lah. 261 and Sham Sundar Khushi Ram v. Devi Ditta Mal AIR 1924 Lah. 666. They placed reliance on the judgments in Mt. Lal Devi v. Amar Nath AIR 1954 Punjab 137; Surjit Singh v. C.J. Torrie AIR 1920 Lah. 261 and Sham Sundar Khushi Ram v. Devi Ditta Mal AIR 1924 Lah. 666. It should be noted that in that case it was held that the absence “of service of subsequent notice, whether necessary in law or not, was immaterial for purposes of Art. 164 of the Limitation Act. 26. The Orissa High Court has, in Nitya Matari v. Bhutanath Misra AIR 1932 Lah. 539. held that where the respondent in an appeal was declared, ex parte before the order of transfer of the appeal was made, the notice of the transfer need not be issued to the respondent. In the present case the respondent was not declared ex parte when the matter was pending in this Court on the Original Side. Under the Original Side Rules, a defendant who is served with summons in the suit shall file his written statement within the period limited by the summons served on him, vide O. 5, R. 1 of the O.S. Rules. Under the proviso to the Rule he may file it within a further period of five days if the plaintiff or his advocate consents and certifies the consent by endorsement. Under O. 4, R. 5 of O.S. Rules, unless otherwise ordered and accepted as service provided by the rules, every summons issued by the Court shall require the dependent if he intends to defendant the suit, to enter appearance and to file a written statement within 14 days after the service of the summons Upon him. It is not the practice of this Court to set any defendant ex parte, unless all the defendants remainedr ex parte in which event, the suit will be included in the list of ‘undefended cases’. Under O. 6, R. (1) of the O.S. Rules, if all the defendants are duly served and none of the defendants has filed a written, statement the case shall be included in the list of undefended cases. On the other hand, if any of the defendants had filed a written statement the case shall be included in the general list of cases. As in the present case some of the defendants had filed written statements the case was not included in the list of ‘undefended cases’. On the other hand, if any of the defendants had filed a written statement the case shall be included in the general list of cases. As in the present case some of the defendants had filed written statements the case was not included in the list of ‘undefended cases’. Thus the respondent enjoyed an advantageous position on account of the rule prevailing in this Court. If it had been in any subordinate Court if a defendant remained absent after service of summons he would be called absent and set ex parte. 27. In Ranglal v. Munjaji AIR 1955 NUC (Orissa) 4569 a Division Bench considered the scope of Art. 164 and held that summons in the Article meant summons for the first hearing and if that has been duly served the period of limitation would commence from the date of the decree regardless of the fact whether the notice of transfer of thu suit to another court was duly served or not. That is also a case in which the facts are similar. The suit was instituted originally in the Munsifs Court, Manglegaon. It was transferred to the Munsifs court, Parbhani where an ex parte decree was passed on 31-3-1951. The defendant filed an application on 10-6-1951 claiming that he came to know of the decree only at a short time before that and that the application was in time. The Court rejected the contention and held that he having been served with summons in the suit for the first hearing he was not entitled to take advantage of the absence of service of notice of the transfer. It was held that the court had no power to extend the time prescribed by the Limitation Act and the order of the District Judge setting aside the ex parte decree by allowing the appeal filed by the defendant was set aside by the High Court. 28. In Kundan Lal v. Bani Prasad AIR 1956 Hyd. 29 it was held that the service of summons spoken in the third column of Art. 164 related to the service for the first date in the case and if a defendant has been duly served for the first date in the case it is not necessary for the court to serve him with the notice of the subsequent dates in the case. A similar view was taken in Mahendralal v. Ramprasad AIR 1957 All. A similar view was taken in Mahendralal v. Ramprasad AIR 1957 All. 76 ; Sultanul Toman v. Hamid Uddin AIR 1961 Assam 80 and Badri Narayan v. Dhariwad Panchayat AIR 1963 All 361 . In the last of the cases referred to above it was held that the court has no power to set aside an ex parte decree under its inherent powers as there is express provision about it in the Civil Procedure Code and the Limitation Act. 29. It is argued that the suit after it was transferred to the City Civil Court is a fresh suit and different from the suit which was pending in this Court on the Original Side. Learned counsel for the respondent contends that summons should have been issued afresh in the suit after it was numbered in the City Civil Court. According to him, at any rate, notice should have been issued as directed by the Court to counsel. On facts I have already held that the version of the respondent is unbelievable and I have accepted Exs. R-5 and R-6 and held that notices were issued to the respondent himself by the petitioners counsel. But with regard to the contention that the suit is a fresh one and summons should have been issued afresh, there is no warrant whatever either in the Civil Procedure Code or in the Civil Rules of Practice. S. 24, Civil Procedure Code is the provision for transfer of suits. It empowers the High Court as well as the District Court to transfer any suit, appeal or other proceeding cither on application or suo motu. Under sub-section (1) power is given to the Court to transfer on its own motion without notice to the parties, at any stage. R. 48 of the Civil Rules of Practice prescribes the procedure for an application for transfer. That does not refer to a transfer suo motu . No doubt, if an application for transfer is filed notice should be ordered to the parties. There is no rule prescribing issuance of a notice in cases of suo motu transfer or statutory transfer. In the present case the transfer is not by any act of Court. The transfer is a statutory transfer pursuant to the provisions of Tamil Nadu Act 34 of 1980. Under that Act the pecuniary jurisdiction of the City Civil Court as well as the subordinate courts was increased. In the present case the transfer is not by any act of Court. The transfer is a statutory transfer pursuant to the provisions of Tamil Nadu Act 34 of 1980. Under that Act the pecuniary jurisdiction of the City Civil Court as well as the subordinate courts was increased. Sec. 4 of Act 34 of 1980 is very significant. It says: “(1) All suits pending in the High Court on the date of the commencement of this Act and which would be within the cognizance of the Madras City Civil Court under the provisions of the Madras City Civil Court Act, 1892 (Central Act VII of 1892) as amended by this Act shall stand transferred to the Madras City Civil Court ’, (emphasis supplied). Thus the statute by itself has transferred the suits from the date of the commencement of the Act. No party can plead ignorance of law or ignorance of the statute. Once the statute has transferred the suit it is not open to the parties to the suit to assert that they had no notice of the transfer. The practice applicable to transfer on application or even transfer suo motu by court is not applicable to the present case where the transfer is by the legislature itself. 30. I made enquiries in the Office of the Registrar and found that a list of cases which were transferred by virtue of the statute was put up in the notice-board immediately after the passing of the Act and such a list was also published in the Gazette. No doubt, the list contained only the number of the suits and not the names of parties or counsel. But that is certainly not an excuse for the parties. The party was put on notice by the statute itself and there is no question of any fresh notice being issued by the court, informing him of the transfer. It was the duty of the respondent to appear before the City Civil Court, make enquiries and ascertain the date on which the suit was posted. He ought to have done it. Having failed to do so he cannot take advantage of the same and claim that he had no knowledge of the transfer. 31. With respect to transfers by courts reliance is placed on the judgments in Hiralal v. State AIR 1973 Rajasthan 29 and Kishore Kumar v. Basudeo Prasad AIR 1968 Patna. He ought to have done it. Having failed to do so he cannot take advantage of the same and claim that he had no knowledge of the transfer. 31. With respect to transfers by courts reliance is placed on the judgments in Hiralal v. State AIR 1973 Rajasthan 29 and Kishore Kumar v. Basudeo Prasad AIR 1968 Patna. 439. It was held in those cases that if a case is transferred from one court to another the transferee court should give notice of transfer to parties. The rulings will have no bearing in the present case as it is a statutory transfer. 32. The question of notice was considered by this Court in Ellapuram Panchayat Union v. Sri Bhavaniamman Devasthanam AIR 1977 Pat. 131 . Ratnam, J. found that there were no Rules prescribing the issue of notice after a transfer of a suit is effected. He felt that it was necessary and imperative to make such provisions so that the principles of natural justice could be satisfied. The following passages in his judgment are relevant and reliance is placed thereon: “Normally, a party to a proceeding before any civil court is entitled to a notice from that court where the proceedings are pending in order to fix him with the knowledge of the pendency of the proceedings and also to enable him to take steps in that regard. It is on account of this that even in matters which are tried afresh as a result of remit orders that the parties are given notice afresh as otherwise, the fact that the court is again seized of the matter may not be within the knowledge of the parties. Likewise, even when an appeal is preferred, the respondent to such an appeal is entitled to a notice and this has been provided for under O. 41, R. 14, C.P.C.” “It would be a very salutary practice if even in cases of appeals transferred from one Sub-court to another owing to exigencies of work load, a notice to that effect should be given to the parties informing them that the appeal which was pending before one court has since been transferred to another court. No provision to this effect either under the Code of Civil Procedure or under the Civil Rules of Practice and Circular Orders has been brought to the notice of the Court by the counsel on either side. No provision to this effect either under the Code of Civil Procedure or under the Civil Rules of Practice and Circular Orders has been brought to the notice of the Court by the counsel on either side. Since a party to a litigation before any court should know where it is pending and when it is likely to be taken up, it is essential that parties must be informed by the transferee court in order to enable them to appear before the transfers court and contest the proceedings so transferred by engaging other counsel and taking necessary steps in this regard. In the absence of any provisions to that effect either under the Code of Civil Procedure or under the Civil Rules of Practice and Circular Orders, every effort should be made by courts to put the litigants on notice of the transfer of pending litigation, be it the trial court or the appellate court as the case may be. It is very necessary and desirable, nay even imperative that till such time as provision in this regard is made either under the Code of Civil Procedure or under the Civil Rules of Practice and Circular orders, that there should be an inflexible adherence to this requirement regarding notice, as otherwise, courts cannot adjudicate up on the rival claims of the litigants before it after giving an effective and adequate hearing to both sides, which is the bedrock of our system of administration of justice”. 33. After the said judgment the matter was considered administratively by this Court. A note was put up by the office before the judges for framing of appropriate Rules. The observations of Ratnam, J. were placed before the Judges. After considering the matter this Court issued the following Circular in Roc. No. 193-A/81. R.R. in July, 1981. 33. After the said judgment the matter was considered administratively by this Court. A note was put up by the office before the judges for framing of appropriate Rules. The observations of Ratnam, J. were placed before the Judges. After considering the matter this Court issued the following Circular in Roc. No. 193-A/81. R.R. in July, 1981. The following instructions were given to the subordinate courts for their guidance: “(i) “When suits, appeals or other proceedings are transferred from one court to another court, the transferor court shall post before it, the cases to a particular date and take endorsements of the Advocate, who have already entered appearance for the parties that they are aware of the suits, appeals or other proceedings being transferred to a particular court and only thereafter forward the papers to the transferee Court.” (ii) In cases where parties have not already been served, notice or fresh notice (as the case may be) shall be issued by the transferee court”. That circular will also apply only to a transfer by courts. It is seen from the first instruction that it is for the transferor court to make the parties aware of the proceedings of transfer. The second instruction applies to cases where the parties have not already been served. With regard to those cases the instruction was that a notice or fresh notice, as the case may be, shall be issued by the transferee court. Hence the Circular does not contemplate a fresh notice or summons by a transferee court in a case where summons had been served duly on parties when the proceedings were pending in the transferor court. In the present case summons had been served duly on the respondent when the matter was pending in this Court and no question of fresh notice to the respondent arises when the matter was transferred to the City Civil Court. The City Civil Court was under no obligation to issue notice to the respondent about the transfer. It was for the respondent to inform himself about the proceedings and appear before the Court. Hence the respondent cannot place any reliance on the circumstance that he was not served with summons or notice in the suit after it was taken on file in the City Civil Court. The suit is certainly the same one which was filed in this Court. Hence the respondent cannot place any reliance on the circumstance that he was not served with summons or notice in the suit after it was taken on file in the City Civil Court. The suit is certainly the same one which was filed in this Court. It is the same suit for several purposes. It may be necessary for counsel to file a fresh vakalat as the Vakalat filed by them earlier in the transferor court might authorise them to continue the proceedings in that court only. That will not, however, enable the respondent to contend that a fresh summons should be issued by the transferee court. It is the same suit which was being continued in the City Civil Court. For administrative convenience the suit is given a fresh number in the City Civil Court so that there may not be any confusion later. That will not make it a different suit or a fresh suit. This position will be evident from the provisions of the Civil Procedure Code itself found in S. 150. Under that Section the transferee court shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under the Civil Procedure Code upon the court from which the business was so transferred. 34. In HowrahInsurance Co. v. S.M. Das Gupta 3. AIR 1981 Madras 248 the Apex Court considered the question whether the transferee court could enforce a surety bond executed by the interim-receiver in favour of the transferor court. The expression used in the bond was ‘the District Judge, Agartala, his successors, successors-in-office, and assigns’. It was held by the Supreme Court that by virtue of S. 150, Civil P.C. the transferee court which was a Court of a Subordinate Judge was entitled to exercise the same powers in the matter “of enforcement of the bond as the Di strict Judge himself. 35. In Subbiah v. Muthuswamy AIR 1975 SC 2051 Ratnam, J. had to consider a question whether the transferee court could review a judgement passed by the transferor court and held that S. 150, Civil Procedure Code enables the transferee Court to do so. The principle behind the above rulings shows that the suit which is transferred from one court to another is the same suit and not a different one, particularly, for the purpose of limitation it is the same suit. 36. The principle behind the above rulings shows that the suit which is transferred from one court to another is the same suit and not a different one, particularly, for the purpose of limitation it is the same suit. 36. In Ramaswamy v. Veerayan Raja AIR 1984 Mad. 206 = 97 L.W. 254 a suit was instituted originally in a court having jurisdiction. Subsequently, it was found that the plaint should have been presented on account of the value of the subject matter in another court. The question was as to when the suit was instituted. It was held by, the Division Bench that the court in which the plain was presented originally was having jurisdiction to entertain the plaint and it should, therefore, be deemed to have been instituted in that court and the subsequent finding as regards the valuation and return of plaint for presentation to another court did not alter the situation. Though the question which has arisen in the present case did not arise before the Division Bench an analogy can be drawn from the ruling of the Division Bench and it has to be held that the suit continued to be the same suit after it was taken on file in the City Civil Court. 37. Consequently, the service of summons in the suit by this Court when the matter was pending in this Court was the relevant factor. There is no dispute that summons was served on the respondent when the matter was pending in this Court and it was duly served. The first part of the third column of Art. 123 of the Limitation Act will come into play and the starting point of limitation is the date of decree. and not the date on which the respondent claims to have got knowledge of the decree. 38. There is no application filed by the respondent for condonation of delay. When the date of the decree is the starting point of limitation the application filed on 1-8-1988 is clearly out of time. There is no attempt on the part of the respondent to explain the delay. On the other hand, he has come to court with a false excuse that he had no knowledge at all of any of the proceedings and he came to know of the same only on 28-7-1988. There is no attempt on the part of the respondent to explain the delay. On the other hand, he has come to court with a false excuse that he had no knowledge at all of any of the proceedings and he came to know of the same only on 28-7-1988. Once that plea is rejected the respondent is not entitled to have the ex parte decree set aside. 38. It is argued by learned counsel for the respondent that there was no declaration of sufficiency of service by the city Civil Court after it issued notice to counsel for some of the defendants. He placed reliance on the judgment of a Full Bench of this Court in Parasurama v. Appadurai . AIR 1941 Mad. 711 = 53 L.W. 611. That was case in which the Full Bench had to consider the sufficiency of service under O. 5. R. 19, Civil Procedure Code. That will have no relevance for the simple reason that in the present case there was no question of a fresh service by the City Civil Court of summons or notice on the respondent. If the City Civil Court had of its own ordered notice to respondent of his counsel that would not enable the respondent to invoke the second part of third column of Art. 164 of the Limitation Act and contend that summons in the suit had not been duly served on him. 39. Learned counsel for the respondent places reliance on the judgment in Sangram Singh v. Election Tribunal, Kotah AIR 1970 Mad. 271 = 83 LW 137. It was observed in that case that a Code of Procedure must be regarded as such and it is something designed to facilitate justice and further its ends. It is not a penal enactment for punishment and penalties and not a thing designed to trip people up. It was held that too technical a construction of a section that leaves no room for reasonable elasticity of interpretation should be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. The apex Court had been very careful in pointing out that justice should be done to both sides. In the present case the suit was filed in 1975. The apex Court had been very careful in pointing out that justice should be done to both sides. In the present case the suit was filed in 1975. The respondent had been duly served not only in the application for permission to file the suit as an indigent person but also in the suit after it was registered in the court. He did not file any written statement for over four years when the suit was pending in this court. Thereafter when the matter was pending for about five years in the City Civil Court he did not move his little finger to appear in the suit or contest the same. I have found on facts that he had ample knowledge of the proceedings and he appears in court in 1988 for the first time and seeks to set aside the decree which has been obtained by the petitioners after toiling in Courts for a period of about eleven years. 40. It is seen that the ex parte decree was sought to be set aside by two other defendants earlier, viz. defendants 5 and 20 in applications filed by them in I.A. Nos. 981 and 1081 of 1987. It is the case of the petitioners that after the dismissal of those applications on 19-1-1988 the present respondent has been set up by M. Subramania Mudaliar, the seventh defendant, who was the only person who contested the suit. There is considerable force in the contention of the petitioners counsel. 41. It is also argued by learned counsel for the respondents that there is no pleas in the counter-affidavit filed by the petitioners in the court below that the application to set aside the ex parte decree was barred by limitation. S. 3 of the Limitation Act enjoins a court to dismiss any suit instituted, appeal preferred and application made after the prescribed period although limitation has not been set up as a defence. It is not necessary for the petitioners to have raised a plea of limitation. It is the duty of the Court to have considered whether the application of the respondent herein was in time under Art. 123 (Art. 164 of the old Limitation Act) of the Limitation Act. The Court below ought to have held that the application was out of time and dismissed the same. 42. It is the duty of the Court to have considered whether the application of the respondent herein was in time under Art. 123 (Art. 164 of the old Limitation Act) of the Limitation Act. The Court below ought to have held that the application was out of time and dismissed the same. 42. In the result, this revision petition is allowed, the order of the Court below in I.A. No. 13967 of 1988 in O.S. No. 2353 of 1981 is set aside and that application is dismissed, with costs throughout. Counsels fee Rs. 1,000/-.