Ajodhya Mahton v. Mussammat Phul Kuer

Ross, J.:— This is an application for revision of an order passed by the learned District Judge of Gaya allowing an appeal from an order passed by the Subordinate Judge, by which he rejected an application under Order IX, rule 13, to set aside an ex parte final decree in a mortgage suit. It appears that in this application which was made long after the time limited by Article 161 and which was expressed to be an application under Order IX, rule 13, two grounds were taken: (1) that no notice had been served on the applicant and (2) that the application for the final decree was barred by time. The latter ground is not appropriate to an application under Order IX, rule 13, and would not provide a reason for the court to exercise its power under that rule. Apparently for this reason there is no reference to that part of the application in the decision of the Subordinate Judge. He deals only with the question of the service of notice and finding that this service was proved he dismissed the application on the merits. The District Judge, while agreeing with the finding of the Subordinate Judge as to the service of notice, acted under section 151 of the Code and set aside the ex parte decree on the ground that when it was passed it was barred by time.

Now, if it is taken that there was an application before the Subordinate Judge under section 151 of the Code then his judgment must be read as having refused that application and against that refusal no appeal lay to the District Judge. But there is authority for the view that section 151 of the Code cannot be used in this way. [Neelaveni v. Narayana Reddi].

Moreover a definite period of limitation has been prescribed by Article 161 of Schedule I to the Limitation Act for an application to set aside an ex parte decree and the court would not be entitled, by purporting to act under section 151, in effect to extend that period. I would therefore allow this application with costs, set aside the order of the District Judge and restore the order of the Subordinate Judge.

Coutts, J.:— I agree.

Application allowed.