Modi, J. - (1.) THIS is a revision by Labhuram who is plaintiff in the trial court, against an order passed by that court setting aside an ex parte decree made in the following circumstances.
(2.) THE petitioner instituted a suit against the opposite party for recovery of money. It is unnecessary to narrate the facts on which the suit was founded for the purposes of the present revision. Suffice it to say that the defendant opposite party was served, a written statement was put in, issues were framed, and the case was posted for evidence, and some evidence having been led by the plaintiff the suit was adjourned for further evidence of the plaintiff to the 17th March, 1953. On that day, neither the plaintiff nor his counsel was present in court. THE defendant was also absent. THE trial court, therefore, dismissed the suit under O. IX, R. 3, C. P. C. It is not in dispute that an application for restoration of the suit was made by counsel for the petitioner on the same day. No notice was issued for this application to the opposite party, and the trial court allowed the application and restored the suit. What is important to observe is that the court, on the prayer of the petitioner, proceeded to record the evidence of his witnesses who were present on that very day, and closed his evidence. THE court then proceeded to fix the case for judgment for the next following day, that is, the 18th March, 1953, with the result that the suit was decreed against the defendant opposite party. THEreafter the petitioner took out execution of his decree against the opposite party. When the latter thus came to know of the decree, he raised an objection in exe-cution proceedings that he had no knowledge of the decree and so it should not be held to be binding on him and should be set aside. To this, on the 25th September, 1953, the petitioner objected on the ground that such an application could not be considered on the execution side but should have been made in the original suit itself. THE court upheld this objection. THEreafter on the 24th October, 1953, the opposite party made an application in the original suit in which he stated that he was present in court on the 17th March, 1933 on which date the suit stood adjourned for the recording of the petitioner's evidence and that as neither the petitioner nor his counsel was present in court, the suit had been dismissed and thereafter the opposite party left the court. He further stated that no notice had ever been issued to him that an application for restoration of the suit had been made in court on behalf of the petitioner (plaintiff) nor was he ever informed that the suit had been restored and was to be proceeded with. It was further contended on behalf of the opposite party that he came to know of the decree only when the petitioner sought to execute it against him and that he then raised the objection that the decree was illegal and that it should be set aside, which objection had been met by the petitioner by the plea that an objection like that could not be raised on the execution side. THE defendant opposite party, therefore, urged that the suit should not have been restored to file without notice to the former, at any rate, it should not have been proceeded with after restoration without notice to him, and as it had been restored by a mistake of the court, the ex parte decree passed against him be set asides. A specific point was raised in the application that for an application made in such circumstances, there was no period of limitation. When this application came before the court for consideration, both parties were heard, and trial court eventually set aside the ex parte decree. THE present revision has been filed against that order. It is strenuously contended by learned counsel for the petitioner that the application for setting aside the decree filed by the opposite party in the court below was barred by Art. 164 of the Limitation Act. That article is in these terms - "164. By a defendant for an order to set aside a decree passed ex parte. Thirty days. The date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree. " The argument is that the defendant's application for setting aside the ex parte decree was made long after 30 days of the date of the decree, and that there was no proof that the applicant had made it within 30 days of his knowledge that a decree had been passed against him. It is, therefore, contended that the order passed by the trial court was beyond its jurisdiction and should be set aside. I have given my careful and anxious consideration to the contention raised on behalf of the petitioner, and have come to the conclusion that it is without force in the circumstances of this case. Although the defendant opposite party's contention is that he was present in court on the 17th of March, 1953, the trial court's relevant order-sheet does not record his presence for that date and as in the view of the court, both parties were absent, the suit was dismissed under O, IX, R. 3, C. P. C. An application was then made on behalf of the petitioner under O. IX, R. 4 for restoration of the suit. It is submitted that there is a divergence of judicial opinion on the question whether notice of the application for restoration should or should not be given as a matter of necessity before a suit may be restored under O. IX, R. 4. Sec in this connection Brijlal vs. Buaram (1) but I do not wish for the purposes of the present revision to go into that aspect of the case. For it is well settled that where an order of dismissal is set aside, the defendant is entitled as a matter of right to notice of the date which is fixed for the further hearing of the suit. Reference may be made in this connection to Mool Chand vs. Ganga Sahai (2) and Ramchandra Khatik vs. Sahadeo Koshti (3), This position clearly emerges from the language of rule 4 of order IX where it says that when a suit is dismissed under rule 3, the plaintiff may bring a fresh suit or he may apply for an order to get the dismissal set aside, and if he satisfies the court that there was sufficient cause for his nonappearance, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit, The words "and shall appoint a day for proceeding with the suit" are of great importance and mast be given their due effect. The only proper way by which due effect may be given to them would be that the defendant must get notice of the date fixed for the hearing of the suit. It is admitted before me that no such notice was given in the present case. On the other hand, as soon as the dismissal of the suit was set aside and it was restored, the petitioner saw his advantage and wanted to press it home and was successful in persuading the court to record his evidence on the same day and having the case fixed for judgment for the day next following. I have no hesitation in saying under the circumstances that the procedure followed by the court was quite wrong and virtually amounted to an abuse of the process of the court. This resulted in a decree against the defendant opposite party on the 18th March, 1953 and on the latter having filed an application on the 24th October, 1953 for setting it aside, the trial court acting under sec. 151 C. P. C. set aside that decree and in my opinion rightly. Having regard to the peculiar circumstances of this case, I am clearly of opinion that the question of limitation raised by learned counsel for the petitioner is bereft of any real force because it is a fundamental principle of the administration of justice that no party should be allowed to suffer by reason of the court. In the words of Cairns L. C. in Rodger vs. The Compfoire d's Escompte de Paris (4) - "one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors and when the expression,'the act of the court' is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case. It is the duty of the aggregate of those tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceedings docs any injury to the suitors in the court. " In an earlier case Palteney vs. Wanan Lord Eldon (5) expressed this celebrated principle in the following words - "if there be a principle upon which courts of justice ought to act without scruple, it is this ; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. " The same principle was upheld by the Privy Council in Jai Berham vs. Kedarnath (6) where their Lordships observed that "it was inherent in the general jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved. " In this view of the matter, I hold that the error committed by the trial court passing the decree against the opposite party behind its back in the manner in which it did was very justly and properly rectified by it by setting aside that decree. I next turn to Art, 146 of the Limitation Act. A careful examination of its language shows that the starting point for an application by a defendant to set aside an ex parte decree passed against him is 30 days from (1) the date of the decree, or (2) where the summons was not duly served, when the applicant had knowledge of the decree. Not much consideration is required to show that a literal application of the article in cases of the type I have before me is almost impossible ; the reason being that there is no question of the summons having not been duly served in this case, and therefore, the only other starting point that remains is the date of the decree, and it will be seldom, if at all, if a defendant in such a case will get to know of the decree within 30 days of its having been passed with the result that he will be left absolutely without any remedy, he having not made his application within 30 days of the date of the decree. I am, therefore, disposed to hold that Art. 164 in such cases cannot be invoked except perhaps by way of analogy ; but that again is and would be a very different thing from holding that the article is in terms applicable to such cases. It is then contended on behalf of the petitioner that the view taken above would amount to this that it will be left open to the defendant in such cases to make an application for setting aside the ex parte decree whenever he likes. This contention, to my mind, is devoid of force because when the inherent powers of the court are being invoked, the court is bound to take into consideration the facts and circumstances of the particular case before it. There would be nothing to prevent the court from refusing to set aside the decree in a particular case if the defendant appears to have come to it in a given case after unconscionable delay or in circumstances negativing good faith on his part. But where such is not the case, I am clearly of opinion that there is nothing in Art. 164 which should or would prevent the court from exercising its inherent jurisdiction and set aside a decree which has been passed in utter disregard of a mandatory rule of procedure and thereby prevent a wrong which has been occasioned by its own mistake. In this view of the matter, I have arrived at the conclusion that there is no force in this revision and hereby dismiss it ; but in the circumstances of the case, I would make no order as to costs. . ;