Limitation for setting aside an ex parte decree runs when the motion is first moved before the Court, not on notice issuance.

For limitation purposes, an application to set aside an ex parte decree is made when the motion is first brought before the Court and the applicant seeks directions or an adjournment, not when notice of motion is merely issued. A notice of motion is only intimation of an intended proceeding; the limitation period under Article 164, read with Section 3 of the Limitation Act, turns on initiation of the application before the Court. On that approach, the application in the present matter was treated as made when the motion was called on and directions for affidavits were taken, so the challenge was within time and the limitation-based dismissal was incorrect.

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Issues: Whether an application to set aside an ex parte decree is made, for the purpose of limitation, when notice of motion is taken out, or when the motion comes before the Court and the Court gives directions for affidavits and adjourns the hearing; and whether the application in the present case was within time.

Analysis: Under Article 164 of the Limitation Act read with Section 3, limitation turns on when the application is made, not when notice of motion is merely issued. A notice of motion is only an intimation of an intended motion. When the motion is called on before the Court and the Court is moved for directions for affidavits or for adjournment, the application is brought before the Court and is treated as having been made. The fact that the merits are not then heard does not postpone the making of the application, because limitation is concerned with the initiation of the proceeding. Applying that test, the application in the present case was made when the motion first came before the Court and directions were given.

Conclusion: The dismissal on limitation was incorrect, and the application was within time.

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