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Sohan Lal v. Poonam Chand .
Structured Summary of the Opinion — Appeal from Ratangarh Civil Judge (1955)
Factual and Procedural Background
The plaintiff, Poonamchand of Ladnu, sued Sohanlal, his two minor sons Ratanlal and Champalal (with Sohanlal as guardian), and Nanuram (defendant No. 4, the Munim) for recovery of Rs. 5,000 principal and Rs. 500 interest. The plaint alleged that defendants 1–3 obtained a loan through their Munim Nanuram and executed a Hundi payable at sight dated 24 November 1952, which Nanuram executed on their behalf; the Hundi was not paid when presented.
Summons were issued; the official return reported that defendant No. 1 (Sohanlal) refused to accept the summons and that defendant No. 4 concealed himself and his summons was affixed. An order was made to proceed ex parte. Because two defendants were minors, the court directed appointment of a guardian and required the plaintiff to deposit Rs. 100 as guardian's remuneration. The plaintiff later sought to strike off the minors' names, led evidence, and a decree was entered ex parte against Sohanlal on 25 May 1954, with defendant No. 4 held not liable as a consequence.
Sohanlal moved on 8 July 1954 to set aside the ex parte decree, alleging non-service of summons (he was in Calcutta on 13 January 1954), collusion between plaintiff and Nanuram, and that he first learned of the decree on 10 June 1954 from Jaichandlal Golechha. The trial court found the summons had not been duly served, but held Sohanlal’s application was barred by limitation under Article 164 of the Indian Limitation Act and dismissed the application. Sohanlal appealed.
Legal Issues Presented
- Whether the application by Sohanlal to set aside the ex parte decree was barred by limitation under Article 164 of the Indian Limitation Act, having regard to when he acquired "knowledge of the decree".
- Whether vague or indirect information conveyed by third parties (e.g., a statement that a decree of about a certain amount had been passed) suffices as "knowledge of the decree" for the purpose of starting the limitation period under Article 164.
- Whether an alleged reliance on advice from a pleader (Harikishan) that civil courts would re-open on a specified date could afford additional time (i.e., whether Section 5 of the Limitation Act applied to extend time or otherwise excuse delay).
Arguments of the Parties
Appellant's (Sohanlal) Arguments
- Sohanlal asserted he received information of the decree on 10 June 1954 and that an earlier Hindi date stated in his papers was a mistake (a mistaken conversion to Jeth Vadi 6, samwat 2011).
- He argued he could not present the application earlier because he had been told by Shri Harikishan Purohit (a pleader and Oath Commissioner) that civil courts would re-open after vacation only on 8 July 1954; Harikishan swore an affidavit that he met Sohanlal on 5 July 1954 and so informed him.
- He complained the summons had not been duly served, that he lacked prior knowledge of the suit, and that the plaintiff's case involved collusion with Nanuram.
Respondent's (Poonamchand / Plaintiff) Arguments
- The plaintiff controverted Sohanlal's factual assertions about service and knowledge of the decree.
- Learned counsel for the respondent contended that the advice from Harikishan did not justify extending time because Section 5 of the Limitation Act did not apply to an application of this nature (i.e., to an application to set aside an ex parte decree under Article 164).
- The respondent relied on the proposition that the burden lies on the applicant to prove that the application was made within the 30-day period, and that absence of proof of timely knowledge requires dismissal (authority reliance noted in the judgment).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bapurao Sakharam v. Sadhu Bhivba, AIR 1923 Bom 193 | The words of Article 164 require knowledge of a particular decree — i.e., knowledge that a specific decree has been passed against the applicant in a particular court in favour of a particular person for a particular sum, not mere knowledge that some decree exists. | The court followed this principle to hold that vague information that "a decree of about Rs. 6,000" had been passed was insufficient to start the limitation period against Sohanlal. |
| Kedarnath v. Kesrimul, AIR 1937 Pat 17 | Reinforces that "knowledge of the decree" in Article 164 means knowledge of the particular decree and not merely knowledge that a decree exists. | Used to support the conclusion that the information passed to Sohanlal did not amount to knowledge of the particular decree for limitation purposes. |
| Chintaman Pawar v. Pannalal, AIR 1931 Nag 119 | Affirms the requirement that the applicant must know that a particular decree was passed against him in a particular court in favour of a particular person and for a particular sum. | Applied for the same proposition: vague information is inadequate to start the running of time under Article 164. |
| Muhammad Sahib v. Alagappa Chettiar, AIR 1926 Mad 31 | Holds that unless the Court finds positively that the petitioner was aware of the decree more than a month before the petition, the petition is not barred by limitation. | Supported the court's approach of requiring positive evidence of knowledge earlier than thirty days before the application; helped the appellate court accept Sohanlal's stated date of knowledge (10 June 1954) as sufficient to render the application timely. |
| Charandas v. Firm Puranlal Gobind Pershad, AIR 1929 Lah. 235 | Indicates that it is for the applicant to state when he received information of the decree and that, where there is no clear finding, a case may be remanded; generally allocates the burden of proof to the petitioner. | The court acknowledged the allocation of burden to the petitioner but pointed out that disbelief of the petitioner's affidavit requires positive contrary evidence; no such positive contrary evidence existed here. |
| Memon Ahmed Abdulla v. Vora Gulam Hussain Nathubhai, AIR 1954 Sau 96 | States that if the applicant fails to prove that he had knowledge of the decree within 30 days prior to his application, the application must fail; factual findings determine the result. | The court noted the principle but observed that the facts here supported the appellant's claim of later knowledge; consequently, this case did not defeat the appeal on the facts before the court. |
Court's Reasoning and Analysis
The court proceeded in a fact-sensitive, precedent-informed analysis focused on two principal strands: (a) service and the genuineness of the process-server's return, and (b) the legal meaning of "knowledge of the decree" for the operation of Article 164.
On service: evidence from the process-server (Hanuman) and the petition-writer (Shankarlal) indicated uncertainty about the identity of the person pointed out as Sohanlal; Sohanlal testified that the summonses were not served on him. The lower court correctly found that the report of refusal to accept the summons was not correct and that summons had not been duly served.
On limitation and "knowledge": Article 164 provides thirty days from "the date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree." The appellate court surveyed established authorities holding that "knowledge" means knowledge of the particular decree, in a particular court, in favour of a particular person for a particular sum — not merely vague information that some decree exists.
The court examined the evidence that Jaichandlal had been told by Bhanwarlal that "a decree of about Rs. 6,000" had been passed and that Jaichandlal sent a postcard to Sohanlal conveying that information. The court found such vague information insufficient to start the limitation period: it failed to show which court, which suit, the exact sum, or the precise decree. Precedents from Bombay, Patna, Nagpur, and Madras were invoked to support this interpretation.
The respondent relied upon advice from Harikishan that courts would re-open on 8 July 1954 and urged that Section 5 of the Limitation Act could afford additional time. The appellate court rejected this ground: Harikishan was not Sohanlal's lawyer, and as a pleader and Oath Commissioner he should have known when courts re-opened if he had exercised due diligence; in any event Section 5 was held inapplicable to confer relief in the circumstances.
Weighing the evidence, the appellate court accepted Sohanlal's later date of acquiring full information (10 June 1954, as alleged by him) and held that earlier vague communications did not begin the running of limitation under Article 164. On this basis the court concluded that Sohanlal's application to set aside the ex parte decree was within time.
Holding and Implications
Holding: The appeal was allowed. In consequence, the appellate court set aside the trial court's order dismissing Sohanlal's application and granted the application to set aside the ex parte decree dated 25 May 1954. The ex parte decree dated 25-5-1954 is set aside and the application to set it aside is allowed; the appeal is allowed.
Direct consequences for the parties:
- The ex parte decree is vacated; the matter will proceed consistent with that order (i.e., Sohanlal is restored to a position to contest the suit).
- Sohanlal is ordered to pay costs of setting aside the ex parte decree to the respondent in the amount of Rs. 100. The court described the costs of the appellate court as "easy".
Broader implications: The court applied and reiterated established authorities interpreting Article 164 — that the relevant "knowledge" for limitation purposes must be knowledge of a particular decree (its court, parties and sum). The opinion applied existing precedent; it did not purport to lay down a new legal principle beyond those authorities cited.
End of summary — all content above is derived exclusively from the provided opinion.
1. This is an appeal against an order of the learned Civil Judge of Ratangarh dated 23rd of March, 1955 refusing to set aside the ex parte decree. Poonamchand of Ladnu instituted a suit against Sohanlal, his two minor sons Ratanlal and Champalal, under guardianship of Sohanlal of Doongargarh and one Nanuram. The suit was for recovery of Rs. 5,000/- for principal and Rs. 500/- for interest on the allegation that the defendants Nos. 1 to 3 obtained a loan of Rs. 5,000/- through their Muhim, defendant No. 4 Nanuram and executed a Hundi payable at sight dated 24th of November, 1952 and the said Hundi was executed by defendant No. 4, their Munim on behalf of defendants Nos. 1 to 3.
2. It was then alleged that the amount of the Hundi was not paid when presented. The defendants Nos. 1 to 3 were stated to be liable on the Hundi, but it was also pleaded that in case defendants Nos. 1 to 3 may raise any objection as to the authority of defendant No. 4, the said defendant No. 4 was also made a defendant. On the summonses being issued, the report was that defendant No. I refused to accept it and the summons was affixed on the outer door of his dwelling on 13th of January, 1954, and further that defendant No. 4 concealed himself on getting information of the summons and his summons was also affixed on the outer door of his dwelling.
3. An order was passed for proceeding ex parte against the defendants. As two of the defendants were minors, the court directed that a guardian should be appointed for them and the plaintiff should deposit Rs. 100/- as remuneration of guardian for the minor defendants. The plaintiff then filed an application that the names of defendants Nos. 2 and 3, minors, be struck off. The plaintiff gave evidence in support of his case and the suit was decreed ex parte against Sohanlal and it was held that defendant No. 4 was, as a consequence, not liable. This ex parte decree was passed on 25-5-1954.
4. On 8-70-1954, Sohanlal filed an application for setting aside the ex parte decree on the allegations that he was at Calcutta on 13-1-1954 and had no information about the suit and his summons had not been duly served. He said that the suit had been brought about by collusion between Nanuram and the plaintiff and the said Sohanlal only got information of the decree on 10-6-1954 from one Jaichandlal Golechha of Ratangarh. It was then said that the suit amount was a large amount and he wanted to contest the same and, therefore, the ex parte decree be set aside. Poonamchand controverted the facts.
5. It was found by the Court that the summons had not been duly served and the report that Sohanlal refused to accept the summons was not correct. The Court, however, held that on the statement of Sohanlal, he received information of the decree on Jeth Vadi 5 or 6, samwat 2011 corresponding to 22nd or 23rd of May, 1954 and the application, which was presented on 8-7-1954 was barred by limitation under Article 164 of the Indian Limitation Act. The application for setting aside the ex parte decree was accordingly dismissed. Sohanlal has filed this appeal.
6. It is contended on behalf of the appellant that Sohanlal really got information of the decree on 10-6-1954 as mentioned in his affidavit along with the application and that under some mistake, he gave the Hindi date as Jeth Vadi 6, samwat 2011. The other reason in support of the appeal was said to be that Sohanlal had been informed by Shri Harikishan Purohit, a pleader of Bikaner that the civil Courts would reopen after the vacations on 8-7-1954 and that was the reason why he could not present the application on the 7th of July, 1954. There is an affidavit of Shri Harikishan that Sohanlal met him on 5-7-1954 at Doongargarh and on enquiry, Harikishan had told Sohanlal that the courts will reopen after the vacations on 8-7-1954.
7. Learned counsel for the respondent urged that the information received from Harikishan was not sufficient for grant of additional time since Section 5 of the Indian Limitation Act was not applicable to an application of this nature. So far as this ground is concerned, I do not think that Sohanlal could be given any benefit, because of this advice. In the first place, nothing is bona fide which is not done with due care and attention. This Harikisban was not the lawyer of Sohanlal and Harikishan being an Oath Commissioner and a pleader should have known when the Civil Courts would reopen, if he exercised due diligence.
8. On the merits, I am inclined to think that this appeal should be accepted. The suit was for a large amount and according to the very frame of the suit, the Hundi was executed by Nanuram and not by Sohanlal. The plaintiff was not unaware of the fact that Sohanlal may dispute the authority of Nanuram to execute the Hundi or to obtain the money on behalf of Sohanlal. It was for that reason that Nanuram was also made a defendant.
9. In respect of the service of summons, the process-server Hanuman has deposed that he did not know Sohanlal from before and one person was pointed out by Shankarlal, Petition Writer of Ratangarh to be Sohanlal at Doongargarh, but that the said person was not the defendant present in court. Shankerlal, petition writer also said that he did not know Sohanlal from before and he had pointed out to a person in a house which was said to be of Sohanlal. Sohanlal himself came in the witness-box and said that the summonses were not served on him. The lower court rightly held that the report on the summons that Sohanlal refused to accept the summons was not correct.
10. As to limitation, Sohanlal said in his affidavit submitted along with the application, that he received information of the decree on 10-6-1954. In examination as a witness, he did not give the date of such information, but said that he got information of the decree from Jaichandlal in Jeth last. In cross-examination, he said that Jaichandlal had sent a letter which had not been produced and further that he got the information on Jeth Vadi 5 or 6, samwat 2011.
11. Jaichandlal said that he lived at Ratangarh and was acquainted with Sohanlal. Bhanwarlal, the Mukhtiar of the plaintiff informed him on Jeth Vadi 4, samwat 2011 that a decree had been passed against Sohanlal. He accordingly sent a letter to Sohanlal. Bhanwarlal has said that the decree was of about Rs. 6,000/-. In cross-examination, he stated that he had never entered into correspondence with Sohanlal prior to this and that he had given information by a post-card. No other person was then present.
12. The lower court has concluded on this evidence of Sohanlal and Jaichandlal that Sohanlal received information on Jeth Vadi 5th or 6th samwat 2011 corresponding to 22nd or 23rd of May, 1954. Sohanlal had made an application to the court on 6-1-1955 some days after he gave the statement that truly he got information of the decree on 10-6-1954 but had committed error in giving the Hindi date and that a similar mistake was committed by Jaichandlal. Leaving aside whether any in stake had been committed, the first point for consideration is whether the information which was obtained by Jaichandlal and which he passed on to Sohanlal was sufficient information from which the period of limitation should start.
13. Article 164 of the Indian Limitation Act is as follows:
“By a defendant from 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.
14. In the present case, the summons was not duly served and the period of limitation would start from the date when the applicant had knowledge of the decree. The expression “knowledge of the decree” has been the subject of several decisions and it is now established that a mere information that some person has obtained some decree against the defendant is not sufficient. All that Jaichandlal in the present case was told by Bhanwarlal was that a decree of about Rs. 6000/- had been passed against Sohanlal and this information was conveyed by Jaichandlal to Sohanlal.
15. As is stated in the earlier portion of the judgment, the allegations in the plaint were that Nanuram, defendant No. 4, had got money on behalf of Sohanlal and his sons and had executed the Hundi. The transaction was not stated to be directly between Sohanlal on the one hand and Poonamchand on the other. The information that a decree had been passed against Sohanlal was quite insufficient for Sohanlal to understand who had obtained the decree, from what court the decree had been obtained and for what cause of action the decree had been obtained.
16. In Bapurao Sakharam v. Sadhu Bhivba, AIR 1923 Bom 193 the Bombay High Court held that the words of Article 164 mean something more than mere knowledge that a decree had been passed in some suit, in some court against the applicant. It means that the applicant must have knowledge not merely that a decree has been passed against him, but that a particular decree has been passed against him in a particular court in favour of a particular man for a particular sum. The same view has been taken in Kedarnath v. Kesrimul, AIR 1937 Pat 17 where it was observed that the knowledge of the decree mentioned in Article 164 is knowledge of the particular decree and not a knowledge of a decree.
17. A vague information about there being a decree is not sufficient for a period of limitation to run against the applicant. In the Patna case, the defendant had filed an application in execution proceedings for time. Even then, it was held following the Bombay case, AIR 1923 Bom 193 referred to above, that the knowledge which can be attributed for the purposes of the period of limitation is the knowledge of the particular decree and that vague information about there being a decree is not sufficient for the period of limitation to run against the applicant.
18. The same view was taken in Chintaman Pawar v. Pannalal, AIR 1931 Nag 119. The relevant observation is that the law requires, in order to show that the applicant had knowledge of the decree that a particular decree had been passed against him in a particular court in favour of a particular person and for a particular sum, and not merely the knowledge that a decree had been passed by some court against him. In Muhammad Sahib v. Alagappa Chettiar, AIR 1926 Mad 31, the court went so far as to say that unless the Court finds positively that the petitioner was aware of the decree at a time which was more than a month before the petition, it is not barred by limitation.
19. Learned counsel for the respondent relied on Charandas v. Firm Puranlal Gobind Pershad, AIR 1929 Lah. 235 and urged that the court had to find definitely that the applicant did not have the knowledge of the decree more than 30 days before the application was made and that the onus of the proof that the application was within time lay on the petitioner. In the case, there was no finding as to when the applicant had the knowledge and the case was remanded. There is no doubt that it is for the defendant petitioner to say when he got information of the decree.
20. Since, however, it is his information, he can only prove it by affidavit or statement on oath. In order that affidavit or statement should be disbelieved, there must be positive evidence on the other side. The burden of proof is initially, no doubt, on the defendant, but how that burden is to betaken to be discharged or when it can be said to be discharged or when the contrary stands proved, is a matter which can only be decided on particular facts in each case.
21. In the present case, there is no evidence on behalf of the plaintiff that the defendant had received information of the particular decree of a particular court for a particular sum prior to thirty days of his application. But what is made use of is the statement of the defendant and Jaichandlal made in court. As stated earlier, those statements only show that Jaichandlal did inform Sohanlal that a decree about Rs. 6,000/- had been passed against him.
22. But this was quite insufficient information for the purpose of start of limitation. When the defendant said in his application that he received information from Jaichandlal about the decree, that was of course the first information about a certain decree being passed against the defendant. Though it related to the decree for which the application was made, the full facts may have been found by the defendant on the 10th of June, 1954 when he says he had information of the decree.
23. The other case relied upon by learned counsel for the respondent is Memon Ahmed Abdulla v. Vora Gulam Hussain Nathubhai, AIR 1954 Sau 96. The observation is that where the applicant fails to prove that he had knowledge of the passing of the decree within 30 days prior to the date of his application, the application is bound to fail.
24. The statement of law is unobjectionable. What facts would amount to a knowledge is a matter to be determined in each case. In the Saurashtra case the two courts had found that the defendant had knowledge of the decree beyond 30 days of his application and the court in its revisional jurisdiction, declined to interfere. The case is no authority on the question, what facts coming to the knowledge of the defendant would amount to a knowledge of the decree. As stated earlier, in the facts and circumstances of the case, I accept the version of the defendant that he got information of the decree entitling him to present the application on the 10th of June, 1954 as alleged by him and whatever information he may have received earlier is not sufficient for start of the limitation. The appeal is accordingly allowed; the order of the lower court dismissing the application to set aside the ex parte decree is set aside. The application for setting aside the ex parte decree is allowed and the ex parte decree dated 25th of March, 1954 is set aside. Much of the difficulty in the case has been caused by the indifferent statement of the defendant himself. He will pay costs for setting aside the ex parte decree to the respondent, which are fixed at Rs. 100/-. The costs of this Court will be easy:
ED/V.B.B
25. Appeal allowed.
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