SHIV KUMAR SHARMA,J. - (1.) THE starting point of limitation for filing an application under Order 9 Rule 13 CPC should be construed from the date of the decree or from the date of knowledge of the decree, is the short question which arises for consideration in this appeal.
(2.) THIS question has emerged in the following circumstances: (i) A suit was instituted by the plaintiffs respondents for recovery of Rs. 1,70,865/ - against the defendant appellant in the Trial Court. However, on November 30, 1992, the defendant was proceeded ex -parte and the suit came to be decreed vide judgment and decree dated August 30, 1993. (ii) On December 23, 1993, the defendant moved an application under Order 9 Rule 13 of the Code of Civil Procedure. On September 21, 1995, an Application under Section 5 of the limitation Act was filed supported by the affidavit of counsel Sudhir Kumar Tiwari and the defendant. (iii) The said application was dismissed by the Trial Court vide order dated September 21, 1995. (iv) Against this said order, present action for filing the misc. appeal has been resorted to. Mr. Devendra Raghav learned Counsel for the defendant appellant, contended that the court below has committed illegality in not properly appreciating the affidavit file by the counsel. It has been urged that though counter affidavit of one of the plaintiffs was filed but counsel for the plaintiffs has not filed his affidavit. On the other hand Mr. R.K. Mathur vigorously canvassed that the application submitted under Order 9 Rule 13 CPC was time barred, in view of the provisions contained in Article 123 of the limitation Act which provides that for setting a decree passed ex -parte, limitation runs from the date of the decree or whereby the summon or notice was not duly served, from the date when the applicant had knowledge of the decree. In this case the summons was duly served upon the defendant, therefore, the Limitation would run from the date of the decree which was August 30, 1993 and the application was time barred as the defendant -appellant did not file the application within 30 days from the date of the decree moreover the application under Section 5 was not filed together with the application under Order 9 Rule 13 CPC but it was filed much after, on September 21/1995, therefore, the impugned order passed by the court below does not suffer from any infirmity.
(3.) MR . Mathur learned Counsel has placed reliance on Gouri Shankar v. Satyanarain 1992 (2) WLC page 273. Rawal das v. Vasu Devi (RLW 1978 page 151) and Deep chand v. Nandi Ram Sindi (RLW 1973 Page 50). In Gouri Shanker and others (supra),this court indicated that limitation for application under Order 9 Rule 13 is 30 days from the date of decree and not 30 days from the date of knowledge of the decree. In this case the application was filed almost after more than six months from the date of the decree. It was held that order setting aside the decree was arbitrary and liable to be set aside. In Rawal Das case (supra) it was laid down that if the defendant appears but subsequently absent himself and a decree is passed ex parte, time shall be reckoned from the date of the decree. In Deep chand case (supra) provisions of Article 123 were interpreted and It was held that the limitation would run from, the date of the decree, and not from the date of knowledge of the decree.;