GOLAK CHANDRA BISWAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) TITLE Suit No. 293 of 1962 had been filed in the Court of the Munsif, Bhadrak, for declaration of plaintiff's occupancy right and for other reliefs. Defendant entered appearance on 16-3-1963. From that date till 8-10-1963 defendant went on applying for time for filing of written statement. On the last date the application for time was rejected and the defendant was set ex parte. Ultimately ex parte trial was held on 18-1-1964 and an ex parte decree was passed. On 18-2-1964 defendant filed an application under Order 9 Rule 13 C. P. C. which was registered as Misc. Case No. 44 of 1964. On 20-8-64 the learned Munsif held that there was sufficient cause for non-appearance of the defendant on the date of trial and restored the suit. Against this order the Civil Revision has been filed.

(2.) MR. Misra raised two contentions (i) the application under Order 9 Rule 13 C. P. C was barred by limitation by one day and was liable to be dismissed and that this court in exercise of its jurisdiction under Section 115, C. P. C is to set aside the order of restoration and (ii) it is incumbent upon the defendant to establish the sufficient cause from 8-10-1963 when the suit was set ex parte, till 18-1-1964, the date of ex parte trial.

(3.) THE first contention requires careful examination. Section 3 (1) of the Limitation act (Act XXXVI) of 1963 hereinafter referred to as the Act lays down that: "subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted appeal preferred, and application made after prescribed period shall be dismissed. although limitation has not been set up as defence. " under Article 123 of the Act, the period of limitation to set aside a decree passed ex parte is 30 days from the date of the decree, or where summons or notice was not duly served when the applicant had knowledge of the decree. In this case the period of limitation is 30 days from the date of the decree. Admittedly the application for setting aside the ex parte decree was filed one day late. The application was therefore barred by limitation by one day. Under Section 3 (1) of the Act, the Court should have dismissed the application although limitation had not been set up as a defence. This conclusion is supported by a decision of this Court in Ganesh Chandra v. Artatrana Misra AIR 1965 Orissa 17 and of the Supreme Court in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee AIR 1964 SC 1336.