A.S.BAINS, J. - (1.) THIS petition is directed against the order of the learned Sub -Judge Ist Class, Patti, dated 23rd July, 1977, vide which the ex parte decree dated 10th May, 1976 passed by Shri M.M. Aggarwal, Sub -Judge 2nd Class, Patti was set aside.
(2.) AN ex parte decree was passed on 10th May, 1976 in favour of the present petitioners and against the respondents. An application under order 9, rule 13, Civil Procedure Code, read with section 151 of the Code for setting aside the ex parte decree was filed on 29th June, 1976, by the respondents. This application was resisted by the present petitioners and the parties contested on the following issues : 1. Whether the application for setting aside the ex parte decree is within time ? OPA. 2. Whether the application was not filed in proper court, if so, to what effect ? OPA 3. Whether there are sufficient grounds to set aside ex parte decree ? OPA. 4. Relief. The learned Sub -Judge decided issue No. 1 in favour of the respondent and held that the application was within time. The other issues were also decided in favour of the respondents and it was held that there were sufficient grounds to set aside the ex parte decree as the respondents were not served in accordance with law. On the basis of these findings the ex parte decree was set aside. Dissatisfied by the order of the learned Subordinate Judge setting aside the ex parte decree, the plaintiffs have filed the present petition. It is contended on behalf of the petitioners that the application was barred by time and the learned trial Court has erroneously decided in favour of the defendants -respondents. It is argued by the petitioner's counsel that the learned trial court decided this issue on the basis of an affidavit and an affidavit is not an evidence in the eye of law. In support of his contention he relied on M/s. Parekh Brothers v. Kartik Chandra Saha and others, A.I.R. 1968 Cal. 532. It was a case of distinct facts and was not a case of setting aside the ex parte decree. Hence the principle of law as laid down in this authority is not applicable to the facts of the present case. I have carefully considered the matter and am of the view that the learned Subordinate Judge has passed perfectly just order in the interest of justice by setting aside the ex parte decree. It may be mentioned that the ex parte decree was passed on the 10th May, 1976, and the application for setting aside the ex parte decree was made on 29th June, 1976, i.e. after about one months and 19 days, for which a valid explanation is given in the affidavit that on 25th June, 1976 when the petitioners came for taking the actual physical possession with the help of the revenue officers and the police, they came to know of the ex parte decree and the application was filed after four days from the date of knowledge of the ex parte decree. Article 123 of the Limitation Act, 1963 is in the following terms : Description of application Period of Limitation Time from which period begins to run "123 To set aside a decree passed ex parte or to rehear an appeal decree or heard ex parte, substituted service under rule 20 or order 5 of the Civil Procedure Code, 1908 shall not be deemed to be due service. Thirty days. The date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree. Plan reading of this Article shows that the limitation will begin from the date of decree or from the date of knowledge of the passing of the ex parte decree if the summons or notice was not duly served and for the purpose of this article, substituted service shall not be deemed to be due service. Admittedly, the present application for setting aside the ex parte decree was filed within one month from the date of knowledge of the ex parte decree. The objection of Mr. Puri that the affidavit is not a piece of evidence does not hold good. The affidavit is considered by the trial Court and the petitioner did not controvert the contents of the affidavit in his counter -affidavit. Although Sadha Singh, Chowkidar and Hazara Singh were produced by the present petitioners and they stated that the defendants were served but their statements have not been relied upon by the learned Sub Judge. Sadha Singh, Additional Director respondent No. 1, has stated on oath that they were never served nor did they refuse service. In this view of that matter I do not find any merit in the contention raised by the learned counsel for the petitioners. The application for setting aside the ex parte decree cannot be thrown away on hypertechnical grounds. The suit was filed by the present petitioners for possession of 103 kanals and 14 marlas of land on basis of a will and such a matter must be decided in the presence of the interested parties. The petitioner cannot be allowed to get away with such a huge chunk of land just by obtaining an ex parte decree. The process server was not produced by the petitioners and the defendants -respondents have, as earlier observed, categorically denied that they were ever served. Moreover, even if it may be considered that they were ever served. moreover, even if it may be considered that they had knowledge of the ex parte decree then the delay in filing the application of setting aside the ex parte decree is not such as cannot be condoned. In this view of the matter, I do not find any ground to interfere with the order of the learned trial Court on the revisional side. Substantial justice has been done in setting aside the ex parte decree. The view I am taking finds support from Surjit Singh v. Lieut Cap. C.J. Torrie, A.I.R. 1924 Lah. 666, and Nem Chand & another v. Mst. Man Bhari, (1957) 59 P.L.R. 449. In Surjit Singh's case (supra), although the application for setting aside the ex parte decree was considerably barred by time, but even then it was held that against such order setting aside the ex parte decree the High Court should not interfere. Same view is taken in Nem Chand's case (supra) in which case the application for setting aside the ex parte decree was filed after six years and even then the High Court did not interfere with the order of the trial Court setting aside the ex parte decree.
(3.) NO other point is urged.;