Agarwala, J. - (1.) This is an appeal against an order refusing to set aside an ex parte decree. The suit was for damages for breach of contract valued at over Rs. 14,000. The date fixed for the filing of a written statement and for framing of issues was 28-5-1946. Summons was personally served on the defendant. The defendant was a resident of another district. He arrived at the Allahabad railway station on 28-5-1946, but there was a curfew order and so he could not attend the Court. He stayed on for another day and still there was a curfew order and he could not attend the Court on that date as well. In the morning of 30th he went back to his district. The plaintiff also did not appear on the 28th of May, but appeared on the 30th of May and the Court passed the following order on that date: "The case put up for orders today. Defendant is absent. There is no curfew order today. It is therefore ordered that the case be put up for final disposal on the 31st of May 1946. If the defendant appears on that date then he may file a written statement." The defendant had no knowledge of this order and did not appear on 31-5-1946. But the plaintiff appeared and the suit was decreed ex parte.
(2.) The Courts remained closed for the summer vacation from the 2nd of June to the 2nd of July, 1946. On 3-7-1946 the defendant sent a reply- paid telegram, to the Court enquiring about the date in the case. It does not appear whether any reply was sent but the defendant came to know on 4-7-1946, that an ex parte decree had been passed against him on 31-5-1946. One week later, i.e., on 11-7-1946 he came to Allahabad and made an application for setting aside the ex parte decree. This application was dismissed by the Court below on the ground that it was filed beyond 30 days of the date of the decree. Against this order the defendant has come up in appeal to this Court.
(3.) Article 164, Limitation Act applies to such applications which provides that an application for setting aside an ex parte decree may be made within 30 days of "the date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree." It is obvious that the application in the present case was made more than 30 days after the date of the decree. The only Question is whether the second part of the Article applies to the present case.;