Natural justice in partition decrees requires notice before final decree; limitation may run from knowledge in ex parte cases

A final decree in a partition suit passed after the revenue court returned the partition scheme required notice to the defendant before the decree was drawn up; without that opportunity to object, the decree was treated as ex parte and liable to be set aside on natural justice grounds. On limitation, Article 164 of the Limitation Act was confined to the summons for the first hearing of the suit and did not cover later notices at subsequent stages, so an application to set aside such a decree could be maintained within thirty days of knowledge. The matter was remitted for fresh proceedings after notice to the parties.

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Issues: (i) whether a final decree in a partition suit could be passed without notice to the defendant after the partition scheme was received from the revenue court; and (ii) whether the application to set aside the final decree was governed by the period of limitation running from the date of decree or from the date of knowledge.

Issue (i): whether a final decree in a partition suit could be passed without notice to the defendant after the partition scheme was received from the revenue court.

Analysis: After the preliminary decree, the proceedings for final decree had effectively gone into a fresh stage when the papers were sent to the revenue court for preparation of the partition scheme. No notice of the fresh scheme was given to the defendant or his counsel before the final decree was drawn up. Even in the absence of an express statutory provision requiring notice, the requirements of natural justice demanded that the parties be informed of the scheme and given an opportunity to object before the final decree was made. A final decree passed without such notice was therefore liable to be set aside as an ex parte decree, and the court also had inherent power to correct the wrong committed by it.

Conclusion: The final decree passed without notice was not binding and was liable to be set aside.

Issue (ii): whether the application to set aside the final decree was governed by the period of limitation running from the date of decree or from the date of knowledge.

Analysis: The expression "summons" in Article 164 of the Limitation Act was confined to the summons for the first hearing of the suit and did not include later notices issued at subsequent stages. Since the original summons had been duly served and the later stage involved a decree passed without notice, the application could not be treated as barred by limitation on the footing that time ran only from the date of decree. In the circumstances, the defendant was entitled to seek relief within thirty days of knowledge of the ex parte final decree.

Conclusion: The application was not barred by limitation and could be maintained from the date of knowledge.

Final Conclusion: The revision succeeded, the orders of the courts below and the final decree were set aside, and the matter was remitted for fresh proceedings after notice to the parties.

Ratio Decidendi: Where a final decree is prepared at a fresh stage of partition proceedings without notice to a party, the decree is ex parte and liable to be set aside; for limitation purposes, Article 164 of the Limitation Act refers to the summons for the first hearing of the suit, not subsequent notices, so relief may be sought from the date of knowledge in such circumstances.

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