1954 (1) TMI 35 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the application to set aside the 'ex parte' decree was barred by limitation.
2. Whether the application was made within the prescribed time limit under Article 164 of the Limitation Act.
3. Whether the case should be remanded for a decision on the merits of the application.

Issue-wise Detailed Analysis:

1. Whether the application to set aside the 'ex parte' decree was barred by limitation:
The appellant, Sohonlal Nagarmull, appealed against the order refusing to set aside an 'ex parte' decree on the grounds of limitation. The respondent's counsel conceded that if limitation was the sole ground for dismissal, the point should be decided in favor of the appellant. However, due to a conflicting decision by P. B. Mukharji J. in another case, the court decided to consider the issue of limitation thoroughly.

2. Whether the application was made within the prescribed time limit under Article 164 of the Limitation Act:
The court examined the previous decision of P. B. Mukharji J. in 'Debendra Nath v. Sm. Satyabala Dassi', where it was held that an application was not made until it was heard, and merely taking out a notice of motion or obtaining directions for affidavits did not constitute making an application. In contrast, Bachawat J. in 'Abdul Gani v. David Jacob' held that an application was made when the court took cognizance of it, which could include giving directions for affidavits or adjournments.

The court concluded that the application in the present case was made on 7-4-1952, when the court gave directions for filing affidavits and adjourned the hearing. This was within the thirty-day period from the date of the decree (28-3-1952), thus making the application timely.

3. Whether the case should be remanded for a decision on the merits of the application:
The court decided that it would not be proper to decide the merits of the application without the benefit of the trial judge's findings. Therefore, the case was remanded to the trial judge for a decision on the issues other than limitation. The court emphasized that the trial judge should consider whether there was sufficient cause for the appellant's absence when the decree was passed.

Conclusion:
The appeal was allowed, the order of the trial judge was set aside, and the case was remanded for further proceedings on the merits of the application. Costs were to abide by the result, and the case was certified for two counsel.