M. P. Mehrotra, J. - (1.) THIS writ petition under Article 226 of the Constitution of India is directed against an order dated 21-2-1981. By the said order, the trial court had allowed an application under Order 9 rule 13 CPC and had set aside the exparte decree. The plaintiff decree-holder filed a revision against the said order and the same was allowed as stated above. The result was that the application under Order 9 rule 13 CPC stood rejected and the exparte decree was allowed to stand,
(2.) THE defendant-judgment-debtor has come up in the instant petition and in support and in opposition I have heard the learned counsel for the parties. THE revisional Court allowed the revision on the ground that the application under Order 9 rule 13 CPC was barred by limitation under Article 123 of the new Limitation Act. THE revisional court felt that the trial court was wrong in thinking that under the said Article when there was no irregularity in the service of process even then the date of knowledge of the exparte decree would be the starting point. It was emphasised that the date of knowledge would be the starting point only where the summons had not been duly served. However, where the summons had been duly served, the starting point would be the date of the exparte decree and not the date of the knowledge of such decree. As the trial court had not taken into consideration the said aspect and as there was no application under section 5 of the Limitation Act for the condonation of delay, the revisional court set aside the order passed by the trial court. It has been contended before me that even where there is no written application under section 5 of the Limitation Act, a court has the power to condone the delay. A reference was made to the following cases ; Firm Kaura Mal Bishan Das v. Firm Mathra Das Atma Ram, AIR 1959 Punjab 646, Mst. Kulsooman Nisson v. Noor Mohammad alias Sultan Haider, AIR 1936 All. 666, Smt. Shakuntala Devi v. Banwari Lal, AIR 1977 All. 551, Sadhu Muktajivandas Guru Ishwardasji v. Acharya Shri Devendra Prasadji Vasudeo Prasadji Maharaj Pande, AIR 1973 SC 582, Bhagwan Swarup v. Moot Chand AIR 1983 SC 355. Apart from the said aspect of the matter, I think that the revisional court should not have interfered in the revision. The trial court had allowed the application under Order 9 rule 13 CPC as it felt that there was sufficient cause for the delay shown by the defendant-judgment-debtor. The revisional court was exercising a discretionary jurisdiction and the manner in which the discretion should be exercised in the circumstance of this kind needed to be considered.
(3.) IN Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993, the Supreme Court emphasised that it is significant that under Order 43 Rule 1 (d) CPC no appeal lies against an order passed under Order 9 Rule 13 CPC allowing a restoration application and setting aside the exparte decree. An appeal is provided where such an application is rejected. It was observed in the said case as follows :- "---and it is not without significance that under Order XLIII Rule 1 (d) appeal lies not against orders setting aside a decree passed exparte but against orders rejecting such application unmistakably pointing to the policy of the Code being that subject to securing due diligence on the part of the parties to the suit, the Code as far as possible makes provision for decisions in suits after a hearing afforded to the parties ". The trial court had allowed the restoration application subject to terms and, in my view, the revisional court was wrong in interfering in an order of this kind without even adverting to the said aspect of the matter.;