Messrs. The Stock An... v. Messrs. Kothari & Sons

JUDGMENT

This is a petition by the defendant in a suit on the file of the Court of Small Causes at Madras to revise an order passed by that Court refusing to set aside an ex parte decree passed against him on the 30th of April 1938.

The suit was filed on the 26th of January 1938 and the first date fixed for hearing was the 2nd of March 1938. A summons was taken out for service on the defendant with reference to the hearing on the 2nd of March 1938 but it was not served. The suit was adjourned to the 22nd of March 1938 for which date a fresh summons was taken out. Unfortunately, this summons was served upon the defendant only on the 29th of March which is, it will be noticed, a week later than the date fixed for hearing. No further summons appears to have been taken out but on the 30th of April, 1938, the suit was taken up and an ex parte decree was passed against the defendant who did not appear on that date. On the 15th of June, 1938 the defendant applied to the Court for setting aside the ex parte decree with the result already mentioned.

The reason for the refusal of the learned Judge of the Court of Small Causes to set aside the ex parte decree was that the application was barred by limitation under Art. 164 of the Indian Limitation Act, 1908. In his affidavit in support of the application, the defendant urged—and it was not denied—that he had knowledge of the decree only on the 10th of May 1938. If the period of 30 days fixed by the Limitation Act is calculated from the 10th of May 1938, the application is in time as the 9th of June 1938 which was the last day of the period was a holiday and the Court did not sit until the 15th of June 1938. But the learned Judge was of opinion that when the summons was served upon the defendant on the 29th of March 1938, he became aware of the institution of the suit and he ought to have taken proper steps for ascertaining the final date for hearing. The learned Judge was apparently of the opinion that if steps had been taken and enquiry proceeded, the defendant would have known that the suit had been fixed to the 30th of April 1938. The learned Judge evidently regards this date as the starting point for the calculation of the period of limitation. I am unable to concur in this view.

Article 164 of the Indian Limitation Act which is the Article applicable to the present case fixed the point of time from which limitation is to run as follows:

“The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree.”

There are two alternative points of time indicated by the Article (1) the date of the decree when a decree is passed after due service of summons or (2) the date on which the defendants had knowledge of the decree when the decree is one which had been passed without summons having been duly served upon him. The petitioner contends that it is the second clause that has application here, for according to him, this is a case where the summons was not duly served. He further contends that what is meant by knowledge in the Article is actual knowledge and not merely the means of knowledge. The Article has reference to an application made under O. 9, R. 13, and it is therefore necessary to go to that rule for understanding the proper meaning to be given to the expression ‘duly served’ both in that rule and in the Article under consideration. I am aware that the same expression also occurs in O. 5, R. 19, but the meaning of the expression for the purpose of that rule, different though it may be, can have no bearing on the construction of the Article. The expression ‘duly served’, if literally understood, would seem to have reference rather to the mode of service, than to the propriety of the summons where it fixes a day of hearing on which it would be impossible for the defendant to appear. But the former can hardly be the sense in which the expression is used in O. 9, R. 13, of the Code. It is conceded, and I think rightly, that where the summons is served on a defendant too late to afford him a sufficient opportunity of appearing at the hearing of the suit, it is not a case of a summons ‘duly served’, within the meaning of the section. In the present case, the date of the hearing was the 22nd of March 1938 and the defendant was served, as I have said, a week later on the 29th of March 1938. I am therefore satisfied that this is a case where the summons was not duly served.

The only question then is whether the learned Judge of the Court of Small Causes is right in interpreting the word ‘knowledge’ appearing in the Article as equivalent to ‘means of knowledge’. The two things are, in my opinion, quite distinct and to say that they mean the same thing is doing violence to the language of the statute. The mere existence of the means of knowledge may in some cases lead irresistibly to the inference that the party had actual knowledge. But that is not the case here. The petitioner might have thought in perfect good faith, that in view of the late service, the Court would issue fresh summons fixing another date for the hearing. That is what I consider the Court should have done in the present case. The omission on the part of the petitioner to prosecute inquiry which might have led to a knowledge of the date of hearing cannot be regarded as culpable or wilful, so as to carry with it the consequences of knowledge. In the present case, the defendant must be held to have had knowledge of the decree only on the 10th of May 1938, and his application was therefore within time. The order of the learned Judge cannot therefore be sustained and must be set aside.

But this is a case in which it is eminently desirable that the defendant should be put upon terms. I see from an order passed by Lakshmana Rao, J. on 18th October 1938 that the stay of execution of the decree pending the disposal of the petition was granted on the condition that the petitioner deposited into Court on or before 18th November 1938 the sum of Rs. 2,200. The learned Counsel for the respondent informs me that this has not been complied with. In the circumstances of this case, I direct that the petitioner should deposit into Court a sum of Rs. 2,200 within a fortnight peremptory from this date; in default of such deposit, the revision petition will stand dismissed with costs. If the defendant makes the deposit within the time limited, the learned Judge in the Court below will take the suit back to his file and dispose of it according to law.

Order set aside.

N.R.R