Limitation for setting aside an ex parte decree may run from knowledge of decree where delay is explained in the application itself.

Limitation for an Order IX Rule 13 application to set aside an ex parte decree was reckoned from the date of knowledge on the facts, where the applicants said they learnt of the decree only on execution. The Court accepted that the delay was explained by the grounds stated in the application itself, supported by the surrounding circumstances of compromise and the applicants' asserted absence from proceedings. It further held that a separate Section 5 application was not indispensable when the delay explanation was embedded in the Order IX Rule 13 petition and the matter was considered on merits. Relief was therefore not barred for want of a separate condonation application.

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Issues: Whether the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside the ex parte decree was within limitation on the appellants' showing that they acquired knowledge of the decree only upon execution, and whether a separate application under Section 5 of the Limitation Act, 1963 was indispensable.

Analysis: The finding of the appellate court was that the parties had entered into a compromise, the appellants had stayed away from the proceedings on the assurance that the suit would be withdrawn, and the order sheets could not safely establish their presence because they bore no signatures. On that basis, the delay in moving the application under Order IX Rule 13 stood explained by the very grounds stated in the application itself. The Court held that the limitation in the facts of the case had to be reckoned from the date of knowledge of the decree, not mechanically from the date of the decree, and that the application contained sufficient material to justify the delay. It further held that a separate Section 5 application was not warranted where the explanation for delay was embedded in the Order IX Rule 13 application and the matter had been considered on merits.

Conclusion: The application under Order IX Rule 13 was within time on the facts of the case, the absence of a separate Section 5 application did not bar relief, and the High Court erred in restoring the trial court's order.

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