1996 (12) TMI 412 - HC - Indian Laws

High Court upholds time-barred application to set aside ex parte decree under Order 9 Rule 13 CPC

The High Court dismissed the revision petition, upholding the lower courts' decision that the application to set aside the ex parte decree was ... - Issues Involved:1. Whether there are sufficient grounds to set aside the ex parte decree.2. Whether the application to set aside the ex parte decree is within time.Issue-wise Detailed Analysis:1. Whether there are sufficient grounds to set aside the ex parte decree:The applicant, Ram Narain, contended that he was not duly served in the main suit, leading to an ex parte decree against him. He argued that he only became aware of the decree on 4.5.1973 when the Patwari Halqa went to deliver possession to the plaintiff. The trial court found in favor of the applicant, stating that there was no proper service. The court noted that the process server did not follow the proper procedure, such as attaching a copy of the plaint with the summons or affixing the summons on the defendant's house. The court cited the case of Jagan Nath v. Tek Chand, emphasizing that 'a summons shall be deemed to have been duly served only if the summons along with the copy of the plaint or a concise statement thereof, if permitted, is served on the defendant or tendered to him.' The trial court concluded that the ex parte decree was illegal and void due to improper service, thereby providing sufficient grounds to set it aside.2. Whether the application to set aside the ex parte decree is within time:The application under Order 9 Rule 13 CPC was filed on 7.6.1973, which was beyond the 30-day limitation period prescribed by Article 123 of the Limitation Act, 1963, starting from the date of knowledge of the decree, i.e., 4.5.1973. The trial court dismissed the application on the grounds of being time-barred. The appellate court upheld this decision, stating that the applicant failed to show sufficient cause for the delay and did not explain each day's delay as required under Section 5 of the Limitation Act. The court noted that the application was prepared on 4.6.1973 but filed on 7.6.1973, with no explanation for the delay. The court also emphasized that even a void order must be challenged within the statutory period, referencing the Supreme Court's decision in State of Punjab v. Gurdev Singh and Ashok Kumar.Conclusion:The High Court dismissed the revision petition, agreeing with the lower courts that the application to set aside the ex parte decree was time-barred. The court reiterated that the applicant failed to provide sufficient cause for the delay and did not explain each day's delay. The court also rejected the argument that the ex parte decree was void and thus not subject to the limitation period. Consequently, the High Court found no merit in the revision and dismissed it, leaving the parties to bear their own costs.