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2016 DIGILAW 679 (CAL)

Sarama Roy v. Haradhan Das

2016-08-30

SAHIDULLAH MUNSHI

body2016
JUDGMENT : Sahidullah Munshi, J. 1. This revisional application is directed against order dated 19th May, 2011, passed by the learned Additional District Judge, Hooghly, in Miscellaneous Appeal No.106 of 2007 arising out of Misc. Case No.3 of 1991, which arose from Title Suit No.155 of 1987. The defendants/appellants are the petitioners before this Court. Respondent/opposite party filed a suit for eviction and khas possession before the learned Civil Judge (Junior Division) 1st Court at Serampore which was registered as Title Suit No.155 of 1987. In the said suit the learned Trial Court passed an ex parte judgment and decree on 13th of February, 1990. After such ex parte decree was passed opposite party/decree-holder filed an execution case being Title Execution Case No.9 of 1990 and tried to get possession of the suit property. The deceased father of the present petitioners as defendant filed a Misc. Case being No.3 of 1991 under the provisions of Order IX Rule 13 read with Section 151 of the Code of Civil Procedure. The application for setting aside ex parte decree was made based on a ground that no summon had been issued to the defendants/petitioners. The defendant/petitioners never received any summons from the said Court and the plaintiff, it is alleged, in connivance with the Process Server, fraudulently did not serve any summons upon the defendants/petitioners either through Court or by a registered post. It is the further case of the petitioner that writ of execution was recalled by the learned Court after the petitioner filed an application under Section 47 of the Code of Civil Procedure on 7th January, 1991. On 9th January, 1991, the plaintiff filed the application for setting aside ex parte decree under the provisions of Order IX Rule 13 which was numbered as Misc. Case No.3 of 1991. 2. The plaintiff/opposite party entered appearance in the said Misc. Case No.3 of 1991. The plaintiff/opposite party challenged the maintainability of the application under Order IX Rule 13. According to him, the same was filed beyond the prescribed period of limitation and that too without any application under Section 5 of the Limitation Act. 3. The said Misc. 2. The plaintiff/opposite party entered appearance in the said Misc. Case No.3 of 1991. The plaintiff/opposite party challenged the maintainability of the application under Order IX Rule 13. According to him, the same was filed beyond the prescribed period of limitation and that too without any application under Section 5 of the Limitation Act. 3. The said Misc. Case No.3 of 1991 was taken up for consideration by the learned Civil Judge (Junior Division) 1st Court, Serampore and by an order No.113 dated 29th August, 2007, rejected the application filed by the defendant/petitioner under Order IX Rule 13 of the Civil Procedure Code holding, inter alia, that the petitioner has failed to file any application under Section 5 of the Limitation Act because the application was found to be barred by limitation. According to the learned Court, the application under Order IX Rule 13 ought to have been filed within a period of 30 days from the date of the decree. According to the learned Executing Court, the delay is of one year, filing of separate petitions under Section 5 of the Limitation Act was not only technically required but for explaining the delay of such application ought to have been filed by the petitioners. Learned Executing Court has held that without going into the merits of the case he should first consider the question of limitation. According to the learned Judge, as per Article 123 of the Limitation Act, the date of limitation is 30 days from the date of decree, if it is from the date of the ex parte decree then the application under Order IX Rule 13 is clearly barred by law of limitation. It has been noted by the learned Court that the petitioner in the petition as well as in evidence stated that he derived the knowledge about ex parte decree on 7th January, 1991 when the Process Server went to suit premises for executing decree as per order of the Court. The said order was challenged by the petitioner in an appeal being Miscellaneous Appeal No.106 of 2007. The learned Appellate Court below, by its order impugned, affirmed the order passed by the learned Executing Court. The said order was challenged by the petitioner in an appeal being Miscellaneous Appeal No.106 of 2007. The learned Appellate Court below, by its order impugned, affirmed the order passed by the learned Executing Court. The learned Appellate Court below, while affirming the order passed by the Executing Court, held that inasmuch as the appellant had admitted that the parties were involved in different suits before the learned Court below for years together since 1980 and that the Title Suit No.257 of 1983 was pending between them, therefore, the learned Appellate Court below found no justifiable reasons to differ with the findings of the learned Court below and further learned Appellate Court below held that under such circumstances it cannot be held that the petitioners/appellant had no knowledge about Title Suit No.155 of 2007 and the ex parte decree passed by it on 13th February, 1990. The Appellate Court below also held the same view that Misc. Case was filed on 9th January, 1990 which is beyond the period of limitation. 4. Mr. Roy, appearing for the petitioner, has relied upon a judgment in the case of Gauhati University Vs. Niharlal Bhattacharjee reported in (1995) 6 SCC 731 . In the said judgment it has been held by the Hon’ble Apex Court that in a situation when the summons is proved to be delayed served, then the limitation begins to run under Article 123 of the Limitation Act from the date of decree but when the summons, though served, but the defendant does not have due time, clause (c) Rule 6 of Order IX, envisaged further notice to be given. It has been further held that limitation began to run only when the appellant had knowledge of the ex parte decree and it will be sufficient if an application is made within a period of 30 days from the date of knowledge. 5. Mr. Rakshit, learned advocate, appearing for the plaintiff/opposite party, submits that this revisional application has become infructuous and no order can be passed in view of the fact that the decree had already been executed by the learned Court below and in support of his such submission he has referred to the orders passed by both the Courts below. 5. Mr. Rakshit, learned advocate, appearing for the plaintiff/opposite party, submits that this revisional application has become infructuous and no order can be passed in view of the fact that the decree had already been executed by the learned Court below and in support of his such submission he has referred to the orders passed by both the Courts below. From the report of the Process Server dated 7th January, 1991, it appears that the decree-holder has received possession of the suit property on 7th January, 1991 and he had certified to that effect. In the order dated 29th August, 2007, the learned Executing Court has recorded that according to the decree-holder, he got possession of the suit property through Process Server on 7th January, 1991. He further stated that the judgment-debtor and his men illegally took possession of the suit property by breaking padlock and boundary wall forcibly on 8th January, 1991. It further appears from the said order of the learned Executing Court wherein it has been recorded that from the evidence of the O.P., i.e., plaintiff/decree-holder, on 7th January, 1991 at the time of execution defendant/judgment-debtor, in writing, undertook that he would leave the suit premises on 8th January, 1993 at about 8 a.m. and the said undertaking has been marked by the learned Executing Court as Exhibit-A. The Executing Court made a finding that from the documents it clearly revealed that on 7th January, 1991 the execution through Process Server had been completed but the decree-holder allowed the judgment-debtor to stay at the suit premises for one day only. Mr. Roy has placed before this Court a copy of the notice issued by the Court on 11th November, 2011 in connection with Title Execution No.9 of 1990 whereby this petitioner was directed to appear before the Court on 2nd January, 2012. He, therefore, contends that the execution case was pending at least till 2nd January, 2012. Mr. Roy has further placed before this Court a certified copy of order dated 6th January, 2014 and various other orders passed subsequently from which it appears that last order was passed on 17th December, 2013. From order No.57 dated 8th July, 2013 onwards it appears that there was a direction upon the decree-holder to file original decree. Ultimately, no original decree was filed. Mr. From order No.57 dated 8th July, 2013 onwards it appears that there was a direction upon the decree-holder to file original decree. Ultimately, no original decree was filed. Mr. Roy contends that the execution case is pending and it is undisputed that the petitioner is in possession of the decretal property. It is on record that Misc. Case No.3 being an application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure was filed on 9th January, 1991. Be that as it may, it is not disputed that the application under Order IX Rule 13 was filed on a date when the execution case was pending. After filing of the Order IX Rule 13 application, even if the execution case has come to an end, the remedy available to the petitioner cannot be said to have become infructuous, although, this is not the ground for rejection of the petitioner’s application under Order IX Rule 13. 6. Learned Courts below concurrently held that the petitioner failed to file an application under Section 5 of the Limitation Act in presenting the application under Order IX Rule 13 of the Code of Civil Procedure before the Court. Learned Appellate Court below held that it cannot be believed that he had no knowledge about the ex parte decree passed on 13th February, 1990 as various other proceedings were pending between the parties. Therefore, this Court concentrates on the point of maintainability of the application under Order IX Rule 13 of the Code on the ground of non-filing of an application for condonation of delay. 7. It is the definite case of the petitioner that no summons were issued to him and, therefore, the time to file an application for setting aside an ex parte decree will start not from the date of decree but from the date of knowledge. There is no finding of the Courts below that summons were served and received by the petitioner. According to the provisions of Article 123 of the Limitation Act, time to file an application for setting aside decree passed ex parte is 30 days from the date of the decree or where the summons or notice were not duly served then the application is to be made within 30 days from the date of knowledge of the decree. According to the provisions of Article 123 of the Limitation Act, time to file an application for setting aside decree passed ex parte is 30 days from the date of the decree or where the summons or notice were not duly served then the application is to be made within 30 days from the date of knowledge of the decree. It is profitable to quote Article 123 of the Limitation Act, 1963 : Description of application Period of limitation Time from which period begins to run 123. To set aside a decree passed ex-parte 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. Explanation. – For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service. 8. The application for recalling of an ex parte decree should be allowed if ‘sufficient cause’ is shown by the party. It is the settled principle of law that in doing restoration Courts should liberally construe the word ‘sufficient cause’. 9. In the present case, the petitioner has explained as to when he came to learn about the ex parte decree and immediately after he came to learn of the same, he rushed to the Court, filed an application on 9th January, 1991, while he came to learn about the ex parte decree only on 7th January, 1991. 10. The ground of rejection of the petitioner’s application under Order IX Rule 13, CPC, is based only on the reason that the petitioner did not file an application for condonation of delay. As held by the Hon’ble Supreme Court in the case of Gauhati University Vs. 10. The ground of rejection of the petitioner’s application under Order IX Rule 13, CPC, is based only on the reason that the petitioner did not file an application for condonation of delay. As held by the Hon’ble Supreme Court in the case of Gauhati University Vs. Niharlal Bhattacharjee (supra), this Court holds that in a case where it could not be proved or when a Court has failed to assert that summons had been sent to the defendant and that he received notice, then only question of limitation from the date of the decree will be considered but in absence thereof, according to Article 123 of the Limitation Act, 1963, the limitation is thirty days and, therefore, the learned Courts below ought not to have rejected the application under Order IX Rule 13 of the Civil Procedure Code on the ground of delay. Normally, Courts would be inclined to condone delay in filing restoration application to give opportunity to the parties to have adjudication on merits. In this case, however, this Court does not find that the learned Courts below were right in holding that the application was beyond the prescribed period of limitation. 11. This Court, therefore, set aside the judgment and order dated 19th May, 2011, passed in Misc. Appeal No.106 of 2007 as also the order dated 29th August, 2007, passed in Misc. Case No.3 of 1991. However, having regard to the fact that the petitioner’s application under Order IX Rule 13, Civil Procedure Code, is pending since 1990, this Court directs the learned Court below to decide the petitioner’s application under Order IX Rule 13 of the Code of Civil Procedure on merit, within a period of three months from the date of communication of this order without granting any unnecessary adjournment to either of the parties. It is made clear that while disposing of the petitioner’s application under Order IX Rule 13 of the Code of Civil Procedure, the learned Court below will not be influenced in any manner by any of the observation made herein. 12. Revisional application is allowed. 13. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.