Dcvaki Animal v. Raman and Brothers and others — 1993 DIGILAW 436 (MAD)

Judgment : Plaintiff is the petitioner in this revision petition against the order dated 9. 1990 to I.A.No.1005 of 1991 filed by defendants 1,3 and 4 (respondents herein) praying for condonation of delay of 621 days in filing the petition to set aside the exparte decree dated 23. 1989in O.S.No.1297 of 1987 on the file of the 6th Assistant Judge, City Civil Court, Madras. The said order allowed the said application on condition that the said defendants paid a sum of Rs. 500 as costs within 30.9.1992. The said defendants having complied with the said condition, the present revision petition is filed by the plaintiff. 2. The court below came to the conclusion that on 17. 1990 itself the defendants had knowledge of the exparte decree since the bailiff, in executing the decree, has reported that when he went to deliver possession of the suit property pursuant to the said possession decree given, 4th defendant was present and objected to the delivery of possession. Thus, the court below rejected the contention of the said defendants that they came to know of the exparte decree only on 112. 1990. 3. No doubt, the abovesaid application has been filed on 1. 1991 along with the other application to set aside the ex parte decree. Therefore, the learned counsel for the petitioner contends that there was no delay at all in filing the application to set aside the ex parte decree, it having been filed within 30 days from the date of knowledge of the decree, that is, from 112. 1990. 4. The learned counsel for the respondents initially argued that the 4th defendant was not present on 17. 1990 when the bailiff is said to have come to the suit property for effecting delivery. But, nowhere, the 4th defendant has stated so. So, there is no difficulty in negativing the said contention. Further since nothing contra has been said about what is contained in the said bailiff’s report in any subsequent affidavit, there cannot also be an argument that the bailiff was not examined. Then, the learned counsel argued that the knowledge of the decree by the 4th defendant must be knowledge of the date of the decree, but that there is no evidence that the bailiff told 4th defendant on 17. 1990 about the date of decree. This argument also had no merit. Then, the learned counsel argued that the knowledge of the decree by the 4th defendant must be knowledge of the date of the decree, but that there is no evidence that the bailiff told 4th defendant on 17. 1990 about the date of decree. This argument also had no merit. When pursuant to the decree given, the bailiff comes to the suit property for effecting delivery and the 4th defendant objects to it, he comes to know of the decree and it is for him to enquire about the date of the decree if really he was not made known of the date of decree. I also find from the bailiff’s report Ex.R-1 dated 17. 1990 as follows: “On 17. 1990 the plaintiffs agent accompa-nied me to the address mentioned in the warrant and pointed out the property to be delivered which is bearing new door Nos.1 and 1-A, Pillaiyar Koil Street, Madras-41. The 4th defendant was present. / informed him about the court order. He did not vacate. Further I found the superstructure is a pucca building. I apprehend the breach of peace would take place at the time of execution, Hence, this warrant is returned to court unexecuted..........” [Emphasis supplied] So, it will not be difficult to hold that the bailiff informed the 4th defendant about the court decree specifically. 5. In this connection, the decision in Ameeran Sahib v. Somanatha Nadar, (1973)1 M.L.J. 255 , relied on by the learned counsel for the respondents will have no application to the present case since there it was found that summons was not duly served inasmuch as the plaint copy had not been sent along with the summons. But, the present one is case where not only the summons of the suit was originally duly served upon the respondents, but also subsequently, after the decree was passed, 4th defendant was made aware of the ex parte decree that has been passed, by the plaintiff on 17. 1990. Further, it can also be held, as explained in paragraph 8 below that the said knowledge of the 4th defendant could be imputed, in the present case, oh the other defendants, viz., defendants 1 and 3 also. 1990. Further, it can also be held, as explained in paragraph 8 below that the said knowledge of the 4th defendant could be imputed, in the present case, oh the other defendants, viz., defendants 1 and 3 also. When they thus came to know of the decree that has been passed, they cannot complain later on that they were not actually aware of the actual date of decree since they could very well verify the date of decree from the court also. 6. The other decision relied on by the learned counsel for the respondents, viz., B.M.T. S.S.Dhanasekharan v. State Bank of India, Dindigul, 90 L.W. 341 also has no application to the present case since in that case, it was only held that a vague knowledge about certain proceedings is not enough for the limitation to operate and that a specific knowledge that a particular decree has been passed against him in a particular court and for a particular sum has to be attributed to the applicants in question. But, in the present case, as has been already found when the bailiff himself, at the time of executing the warrant, makes the judgment-debtors know about the decree, they cannot complain that they did not acquire specific knowledge about the decree that has been passed. 7. The other decision relied on by the learned counsel for the respondents, viz., Balaram v. Hemalata, A.I.R. 1969 On. 196, turned on the relevant facts in that case. But, the facts in the present case are different. 8. Then the learned counsel also specifically argued that the knowledge of the 4th defendant of the decree, cannot be imputed on the other defendants, viz., defendants 1 and 3, who also preferred the abovesaid I.A.No.1005 of 1991. But, it must be noted that all the abovesaid defendants are neighbours living in Nos. 1, 2 and 3 of Pillaiyar Koil Street, of which one of them in the suit property itself. Further, not only they have filed the abovesaid application jointly and filed a common affidavit therein, but they have also engaged the same counsel both in the abovesaid application and in this Court. In the abovesaid affidavit it has also been stated that all of them engaged Mr.M.K.Ragarajan of Poonamallee to appear on their behalf and he filed vakalath on their behalf. In the abovesaid affidavit it has also been stated that all of them engaged Mr.M.K.Ragarajan of Poonamallee to appear on their behalf and he filed vakalath on their behalf. In the above circumstances, it cannot be said that the other defendants, viz., defendants 1 and 3 did not have knowledge of the decree through the 4th defendant. It should also be noted that in the abovesaid common affidavit, there is no reference to what has happened on 17. 1990 when the bailiff came to the suit property for effecting delivery. On the other hand, there is only a reference to what has happened subsequently on 112. 1990. This reference is as follows: “But to our surprise and shock on 112. 1990 a court bailiff, a stranger, with some rowdy elements came to our premises and without informing anything attempted to trespass...... we resisted the so called execution.....”. [emphasis supplied] In the above circumstances, the knowledge of 4th defendant can be imputed as defendants 1 and 3 also, particularly because they have been acting jointly, as stated above. 9. Now, one other question that arises for consideration in this case is whether the period of limitation begins from the date of decree, viz., 23. 1989 or date of knowledge of the decree, viz. the abovesaid 17. 1990. The relevant Article is the Limitation Act, viz., Art. 123 runs as follows: Description of application Period of Limitation Time from which Period begins to run 123. To set aside a decree passedex parte or to re-hear an appealdecreed or heard ex parte Thirty days The date of the decree or where thesummons or notice was not duly served,when the applicant had knowledge of the decree. So, only when summons was not duly served, the period begins to run from the date when the applicant had knowledge of the decree. Otherwise, the period begins from the date of the decree itself. (vide also International Cotton Traders v. Narayanaswami, (1978)2 M.L.J. 698 (D.B.). In this connection, Srinivasan, J. has also held in K.Janarthan and another v. R. Thilak Kumar, (1992)2 L.W. 505 , that the term ‘summons’ and the term ‘notice’ in the abovesaid article relate to the suit and appeal respectively. Admittedly, the present case is one where summons of the suit has been duly served. In this connection, Srinivasan, J. has also held in K.Janarthan and another v. R. Thilak Kumar, (1992)2 L.W. 505 , that the term ‘summons’ and the term ‘notice’ in the abovesaid article relate to the suit and appeal respectively. Admittedly, the present case is one where summons of the suit has been duly served. But, the contention of the learned counsel for the respondents is that though summons was originally served when the suit was pending originally in the District Munsifs Court, Poonamallee, there was no notice to the respondents after the suit was transferred to the City Civil Court, Madras, as to when actually the suit was posted in the said later court, where only the abovesaid ex parte decree was passed. But KJanarthan and another v. R.Thilak Kumar, (1992)2 L.W. 505 , also holds, relying on several earlier decisions that the term ‘summons’ used in the above said Art.123 means summons for the first hearing and that if that has been duly served, the period of limitation would commence from the date of decree regardless of the fact whether notice of the transfer of the suit to another court was duly served or not. No doubt, in this connection, the learned counsel for the respondents drew my attention to the decision in Payal v. Capt.Ashok Kumar Jindal, (1992)3 S.C.C. 116 , where It has been no doubt held that such a notice after the transfer of the suit is necessary, on the facts of the said case. After going into the several facts of the said case, the Supreme Court made the following observation, by way of its conclusion in the matter: “We are of the view that in the facts and circumstances of this case she was justified in her assumption that the proceedings before the Family Court (which passed the ex parte decree for divorce against her, the wife) would be resumed after fresh notice to the parties.” So, I take it that the said Supreme Court decision turned very much on its facts. Further, the said Supreme Court decision did not actually deal with the abovesaid Art.123. Further, there the question was not whether the delay in filing the petition to set aside the ex parte decree should be condoned or not. But, there, the question was whether the petition for setting aside the ex parte decree should be allowed or not. Further, the said Supreme Court decision did not actually deal with the abovesaid Art.123. Further, there the question was not whether the delay in filing the petition to set aside the ex parte decree should be condoned or not. But, there, the question was whether the petition for setting aside the ex parte decree should be allowed or not. Therefore, I do not think that the said Supreme Court decision, would strictly apply to the present case. 10. Further, it must be noted that in the present case, the order dated 21. 1987, transferring the suit, was passed in th,e presence of the counsel for the respondents herein also. Therefore, it may also be said that the respondents are not entitled to a fresh notice as to the hearing in the transferee court and that it is their duty to find out when actually the hearing of the suit is posted in the transferee court. In the above circumstances, the period of limitation would in the present case begin from the date of the decree itself and if so there will be no difficulty in holding that the delay in 621 days and it has not been explained. 11. Anyway, even assuming that a notice after the transfer of the suit is necessary and that the terms “summons” or “notice” under Art.123 of the Limitation Act would include the abovesaid notice after the transfer of the suit, the period of limitation would begin to run from the expiry of 30 days from 17. 1990, when the defendants came to know of the ex parte decree. In such a case, the delay between 18. 1990 and 1. 1991, the date of filing of the application to set aside the ex parte decree along with the abovesaid I.ANo.1005 of 1991 must be explained. But, there is no explanation at all in the affidavit in support of I.ANo.1005 of 1991 regarding the same. On the other hand, the contention is that since the defendants came to know of the decree only on 112. 1990 and the application to set aside the exparte decree having been filed on 1. 1991 itself, that is within 30 days from 112. 1990, there is no delay at all. But, it has been already found that on 17. On the other hand, the contention is that since the defendants came to know of the decree only on 112. 1990 and the application to set aside the exparte decree having been filed on 1. 1991 itself, that is within 30 days from 112. 1990, there is no delay at all. But, it has been already found that on 17. 1990 itself the defendants came to know of the exparte decree and the supporting affidavit having not explained the delay between 18. 1990 and 1. 1991 (that is about 125 days), the court below erred in allowing I.ANo.1005 of 1991. Thus, in view of the fact that the abovesaid about 125 days of delay having not been explained at all in the supporting affidavit, necessarily the impugned order has to be set aside and the civil revision petition has to be allowed, the court below having committed material irregularity in exercising its jurisdiction, resulting in failure of justice. 12. No doubt, the learned counsel for the respondents also argues that since substantial justice has been done to the defendants by the court below by having allowed the abovesaid I.A.No. 1005 of 1991, it should not be interfered with under Sec.115, C.P.C. But, I do not think that there is any justice on the side of the defendants since they have failed to explain the delay of at least the abovesaid 125 days. Further while the Bailiff report shows that even on 17. 1990, the bailiff informed the 4th defendant about the decree, nothing about it is adverted to in the affidavit in support of the application. But, on the other hand, it has been falsely averred that only on 112. 1990 the said defendants came to know of the decree. 13. Therefore, the civil revision petition is allowed, the impugned order is set aside and I.A.No.1005 of 1991 is dismissed. However, in the circumstances of the case, there will be no order as to costs.