TaxTMI 
TaxTMI 
1967 (2) TMI 110
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.... on a mortgage for Rs. 50,000. Suit No. 22 of 1958 was to recover a sum of Rs. 8,000 due on a ruqqa. On May 15, 1958, both the suits were decreed ex-parte. The appellant filed an application to set aside the ex-parte decree passed in Suit No. 22 of 1958. This application was numbered as miscellaneous case No. 104 of 1958. On August 16, 1958, the First Civil Judge, Kanpur, passed an order setting aside this ex-parte decree on certain conditions. The order sheet in O.S. No. 22 of 1958, Misc. Case No. 104 of 1958 on August 16, 1958 stated : "Heard parties counsel, accept the applicant's affidavit and hold that due to non-service applicant was prevented from being present. Allowed on condition of payment of Rs. 150 as costs within ....
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....ing. If the. summons is not duly served, the defendant suffers an injury and be is entitled ex-debito justitiae-to an order setting aside the ex-parte decree provided he applies to the court within the prescribed period of limitation. Under art. 164 of the Indian Limitation Act, 1908, the period of limitation for an application by a defendant for an order to set aside a decree passed ex-parte was 30 days from "the date of the decree or when the summons was not duly served, when the applicant had knowledge, of the decree". The Onus is on the defendant to show that the application is within time and that he had knowledge of the, decree within 30 days of the application. If the defendant produces some evidence to show that the application is w....
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....k. the words of 'the article mean something more than mere knowledge that a decree had been passed in some suit in some Court against the applicant. We think it means that the applicant must have knowledge not merely that a decree has been passed by some Court against, him, but that a particular decree has been passed 'against 'him in a particular Court in favour of a particular person for a particular sum. A judgment debtor is not in such a favourable position as he used to be when he had thirty days from the time when execution was levied against him. But we do not think that the Legislature meant to go to the other extreme by laying down that time began to run from the time the judgment- debtor might have received some vague ....
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.... decree in suit No. 25 of 1958 for the first time from the respondent on April 13, 1959. It has been shown conclusively that this statements false. The respondent filed an affidavit stating that the appellant was directly informed of the passing of this ex-parte decree by the First Civil Judge on August 16, 1958. This statement was not denied by the appellant. The courts below concurrently found that the appellant was personally present in the court of the First Civil Judge on August 16, 1958 when the learned judge informed him that an ex-parte decree had been passed against him in Suit No. 25 of 1958. The appellant was informed that suits Nos. 22 and 25 of 1958 were connected suits. The appellant knew that he had dealings with the responde....