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PETITIONER: PANNALAL

       Vs.

RESPONDENT: MURARILAL

DATE OF JUDGMENT: 27/02/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. BHARGAVA, VISHISHTHA

CITATION:  1967 AIR 1384            1967 SCR  (2) 757

ACT: Indian Limitation Act (9 of 1908) Art. 164-"Knowledge of the decree", meaning of.

HEADNOTE: The appellant had dealings with the respondent in respect of a  ruqqa  and a mortgage.  The respondent  filed  two  suits against the appellant for recovery of the moneys due on  the ruqqa  and  the mortgage respectively. The  summons  in  the suits  was  not duly served on the appellant and  the  suits were   decreed  ex-parte.   The  appellant  then  filed   an application to set aside the ex-parte decree in the suit  on the ruqqa.  The court passed an order on 16th August  1958., setting  aside  that ex-parte decree and also  informed  the appellant  who  was  present in court on that  day,  of  the passing  of  the ex-parte decree in the mortgage  suit.   On 16th  April  1959  the appellant filed  an  application  for setting aside the ex-parte decree in the mortgage suit.  The trial court and the High Court held that the application was barred by limitation under Art. 164 of the Indian Limitation Act,  1908,  as  more than 30 days  had  expired  after  the appellant had knowledge of the ex-parte decree. In appeal to this Court, HELD- The application was rightly dismissed. Under Art. 164 of the Limitation Act, the period of 30  days is  counted, when the-summons is not duly served,  from  the date when the applicant had knowledge of the decree; and the expression "knowledge of the decree" means knowledge of  the particular decree which is sought to be  set aside.  It is a question  -’of fait ’in each case whether  the  information‘ conveyed  is  sufficient to impute the knowledge,  and,  the test  is not what the information would mean to a  stranger, but  what  it  meant to the defendant in the  light  of  his previous  dealings  with  the plaintiff and  the  facts  and circumstances known to him [759-B; 760B-D] Pundlik Rowji v. Vasantrao Madhav Rao 11 B.L.R. 1296;  Kumud Nath,  Roy  Choudhury v. Jotindra Nath Chowdhury  I.L.R.  38 Cal.   394;  Bapuraa  Sitaram  Karmarkar  v.   Sadbu   Bhiva Gholap.I.L.R.  47,  Bom. 485 and  Batulan.v.  S.K.  Dwivedi, I.L.R. 33 Patna, 1025, approved.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal- No. 866 of 1964. Appeal  by special leave from the judgment and  order  dated April  7, 1964 the Allahabad High Court in F.A.F.O. No.  367 of 1959. S.G.  Patwardhan,Rameshwar  Nath. and  Mahinder  Narain  and Prayag Das Agarwal, for the appellants. J.  P.  Goyal and Raghunath Singh for the respondents. 758 The Judgment of the Court was delivered by Bachawat,  J. This appeal incidentally raises a question  of interpretation  of  art. 164 of the  Indian  Limitation  Act 1908.   The  respondent  instituted two  suits  against  the appellant  in  the court of the First Civil  Judge,  Kanpur. Suit No. 25 of 1958 was for the recovery of moneys due on  a mortgage for Rs. 50,000.  Suit No. 22 of 1958 was to recover a  sum of Rs. 8,000 due on a ruqqa.  On May 15,  1958,  both the  suits  were decreed ex-parte.  The appellant  filed  an application to set aside the ex-parte decree passed in  Suit No.   22  of  1958.   This  application  was   numbered   as miscellaneous case No. 104 of 1958.  On August 16, 1958, the First  Civil  Judge, Kanpur, passed an order  setting  aside this ex-parte decree on certain conditions.  The order sheet in  O.S.  No.  22 of 1958, Misc.  Case No. 104  of  1958  on August 16, 1958 stated : "Heard parties counsel, accept the applicant’s affidavit and hold  that due to non-service applicant was  prevented  from being  present.  Allowed on condition of payment of Rs.  150 as  costs  within a month and on  condition  that  allotment shall continue. Sd/- K. N. Goyal                           16-8-58 Applicant is hereby informed of connected decree of 25 of 1958 as well. Sd/- K. N.: Goyal 16/8." An appeal by the appellant from this order was dismissed  on September  25, 1958.  On February 5, 1959, an  advocate  em- ployed  by the appellant to file a civil  revision  petition against  the appellate order, obtained a certified  copy  of the  order dated August 16, 1958.  On February 24,  1959,  a civil  revision petition was filed by the appellant  against the appellate order.  On April 16, 1959, the appellant filed an  application  in  the ’Court of the  First  Civil  Judge, Kanpur,  under 0.9, r. 13, C.P.C., for the setting aside  of the  ex-parte  decree passed in Suit No. 25  of  1958.   The Civil  Judge dismissed the application An appeal  from  than order  filed  by  the appellant was dismissed  by  the  High Court.  Both the courts held that the summons in Suit No. 25 of  1958  was not duly served on the appellant but  as  more than  30 days had expired after the appellant had  knowledge of  the  ex-parte  decree, the  application  was  barred  by Limitation  under  art. 164 of the  Indian  Limitation  Act, 1908.   The appellant Dow appeals to this Court  by--special leave. Under 0.9, r. 13, C.P.C., a decree, passed ex-parte  against a  ,defendant is liable to be set aside if the sununons  was not duly 759 served  or if the defendant was prevented by any  sufficient cause  from  appearing  when  the suit  was  called  on  for hearing.  If the. summons is not duly served, the  defendant suffers an injury and be is entitled ex-debito  justitiae-to

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an  order  setting  aside the ex-parte  decree  provided  he applies  to  the  court  within  the  prescribed  period  of limitation.   Under art. 164 of the Indian  Limitation  Act, 1908,  the  period  of limitation for an  application  by  a defendant for an order to set aside a decree passed ex-parte was 30 days from "the date of the decree or when the summons was  not duly served, when the applicant had  knowledge,  of the decree".  The Onus is on the defendant to show that  the application is within time and that he had knowledge of the, decree within 30 days of the application.  If the  defendant produces  some  evidence  to show that  the  application  is within  the, it is for the plaintiff to rebut this  evidence and  to  establish  satisfactorily that  the  defendant  had knowledge of the decree more-than 30 days before the date of the application. In  Pundlick  Rowji v. Vasant rao Madhavrao(1),  Davar,  J., held  that the expression "knowledge of the decree  in  art’ 164  means knowledge not of a decree but of  the  particular decree which is sought to be set aside, a certain and  clear perception  of the fact that the particular decree had  been passed  against him.  On the facts of that case, Davar,  J., held  that a notice to the defendant that a decree had  been passed  against him in the High Court Suit No. 41 1 of  1909 in’  favour  of  one  Pundlick Rowji with  whom  he  had  no dealings was not sufficient to impute to him clear knowledge of  the  decree in the absence of any information  that  the decree  had been passed in favour of pundlick Rowji  as  the assignee  of  a  promissory note which he  had  executed  in favour,  of  another party.  This case was followed  by  the Calcutta’ High Court in Kumud Nath Roy Chowdhury v. Jotindra Nath  Chowdhury(1). , In Bapurao Sitaram Karmarkar v.  Sadbu Bhiva,  Gholap(3),  the  Bombay High  Court  held  that  the evidence of two, persons who had been asked by the plaintiff to.  tell the defendant’ about the decree and to settle  the matter was not sufficient to impose knowledge of the  decree on  the defendant within the meaning of art.  164.   Macleod C.J. said               "We  think.  the words of  ’the  article  mean               something  more  than mere  knowledge  that  a               decree  had been passed in some suit  in  some               Court  against  the applicant.   We  think  it               means  that the applicant must have  knowledge               not  merely that a decree has been  passed  by               some Court against, him, but that a particular               decree  has  been passed ’against  ’him  in  a               particular  Court  in favour of  a  particular               person for a particular sum.  A judgment-               (1)          11          B.L.R.          1296.               (2) I.L.R. 38 Cal. 394@ 403.               (3)   I.L.R. 47 Bom. 485.               7 60               debtor is not in such a favourable position as               he used to be when he had thirty days from the               time  when execution was levied  against  him.               But we do not think that the Legislature meant               to go to the other extreme by laying down that               time began to run from the time the  judgment-               debtor  might have received some vague  infor-               mation  that a decree had been passed  against               him." This  decision was followed in Batulan v. S.  K.  Dwivedi(1) and other cases.  We agree that the expression "knowledge of the  decree" in art. 164 means knowledge of  the  particular decree  which is sought to be set aside.  When  the  summons was  not  duly served, limitation under art.  164  does  not

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start running against the defendant because he has  received some  vague  information that some decree  has  been  passed against him.  It is a question of fact in each case  whether the  information conveyed to the defendant is sufficient  to impute to him knowledge of the decree within the meaning  of art.  164.   The  test of the sufficiency is  not  what  the information would mean to- a stranger, but what it meant  to the defendant in the light of his previous dealings with the plaintiff and the facts and circumstances known to him.   If from  the  information conveyed to him,  the  defendant  has knowledge of the decree sought to be set, aside, time begins to run against him under art. 164.  It is not necessary that a copy of the decree should be served on the defendant.   It is  sufficient  that  the defendant  has  knowledge  of  the material facts concerning the decree, so that he has a clear perception  of  the  injury suffered by  him  and  can  take effective steps to set aside the decree. In  this case, in his application for setting aside the  ex- parte   decree,  the  appellant  stated  that  he  got   the information  of the passing of the ex-parte decree  in  suit No.  25  of 1958 for the first time from the  respondent  on April  13, 1959.  It has been shown  conclusively that  this statements false.  The respondent filed an affidavit stating that  the appellant was directly informed of the passing  of this ex-parte decree by the First Civil Judge on August  16, 1958.  This statement was not denied by the appellant.   The courts  below  concurrently  found that  the  appellant  was personally present in the court of the First Civil Judge  on August 16, 1958 when the learned judge informed him that  an ex-parte  decree had been passed against him in Suit No.  25 of 1958.  The appellant was informed that suits Nos. 22  and 25 of 1958 were connected suits.  The appellant knew that he had dealings with the respondent in respect of a ruqqa and a mortgage.  He knew that the suit No. 22 of 1958 was filed on the  ruqqa.   From the information conveyed to  him  by  the Civil Judge on August 16, 1958, it must’.have been clear  to the  appellant  that  an ex-parte  decree  had  been  passed against him in favour of the respondent in suit.No. 25 (1)  I.L.R. 33 Pat. 1025,1050-8. 761 of  1958  on the basis of the mortgage.  The  appellant  had thus on August 16, 1958 clear knowledge of the decree passed against him in suit No. 25 of 1958 which he now seeks to set aside.   Time began to run against him from August 16,  1958 under  art.  164 of the Indian Limitation  Act,  1908.   The application  filed by him on April 16, 1959 was,  therefore, clearly  barred by limitation and was rightly  dismissed  by the courts below. In the result, the appeal is dismissed with costs. V.P.S.        Appeal dismissed. 762