Mukherjea, J. - (1.) This is an appeal from a judgment and order dismissing an application for setting aside an ex parte decree which was passed on 9th March, 1965. The notice of motion was taken out on 7th April, 1965, and made returnable on 20th April, 1965. On the returnable date, directions for affidavits were given. Thereafter, the application was heard and dismissed on May 10, 1965.
(2.) The application has been dismissed on ground of limitation. It is not in dispute that the notice of motion and the petition were duly filed in the Registrar's office on 7th April. If the application is treated as having been made on 7th April, that is to say, on the day the notice of motion and the petition were filed in the Registrar's office, the application is not barred by limitation but if the application is treated as having been made on 20th April when the Court was moved, the application must be held to be barred having regard to Article 123 of the Limitation Act, 1963 which governs the application. On consideration of Section 3(2)(c) of the Limitation Act, 1963 and the relevant Rules of the High Court, Original Side, the learned Judge has held that the application was made not on 7th April but on 20th April when the Court was moved. He has accepted the contention of the respondent that by the notice of motion, notice was given that the application would be made on 20th April and, therefore, no application was made on 7th April and that Chapter XX of the Original Side Rules makes a distinction between the making of an application and the filing of notice of motion and affidavits. The learned Judge has relied on the Bench decision in Sohonlal Nagarmull v. Manicklal Seal, 58 CWN 313, a decision given with reference to the Indian Limitation Act, 1908 where Chakrabarti, C.J. that to take out a notice of motion is not to make an application. The learned Judge held that filing of the notice of motion and the affidavits in support thereof, does not constitute presentation of the application to the proper officer of the Court within the meaning of Section 3(2)(c) of the Limitation Act, 1963, and that the application is presented only when it is presented to the officer of the Court which actually hears the application. No application is presented to the officer of the Court because the officer of the Court with whom the petition and the notice are filed does not deal with the application which the Court alone does.
(3.) Section 3(2)(c) of the Limitation Act, 1963, the provisions of which are altogether new, provides as follows : "An application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court." It has to be ascertained, in the context of the section, what is to be understood by presentation of an application and who is the proper officer of this High Court to whom the application has to be presented.;