In Mahabir Singh Vs. Subhash, the Supreme Court of India held that an application for setting aside ex parte decree under Order IX Rule 13 CPC must be filed within thirty days from the date of knowledge under Article 123 Limitation Act. The Court ruled that because Section 3 Limitation Act 1963 establishes a strict jurisdictional bar, any petition submitted beyond the statutory limitation period for ex parte decree cannot be entertained when delay remains unexplained.
Bench and Judgment Details
IN THE SUPREME COURT OF INDIA
Hon'ble Justices: S.B. Sinha and Harjit Singh Bedi, JJ.
Date of Decision: 12/10/2007
Civil Appeal No. 4881 of 2007 (Arising out of SLP (C) No. 9325 of 2005)
Mahabir Singh Vs. Subhash & Ors.
Case Overview and Core Holding
S.B. Sinha, J.
1. Leave granted.
2. Appellant is before us being aggrieved by and dissatisfied with a judgment and order dated 14.2.2005 passed by the High Court of Punjab and Haryana in Civil Revision Petition No. 5999 of 2003 whereby and whereunder the Revision Application filed by the first respondent herein was allowed.
Procedural History and Factual Background
3. Appellant filed a civil suit on or about 6.4.1985. Summons of the suit were served upon the first respondent. He did not appear. An ex parte decree was passed against him on 19.2.1986. An application for mutation on the basis thereof was filed which was allowed on 07.03.1996. Allegedly, the first respondent having come to know about passing of the said ex parte decree on 03.02.1997, filed an application on 07.02.1997 for setting aside ex parte decree, in terms of Order IX Rule 13 of the Code of Civil Procedure.
The learned Trial Judge, by reason of an order dated 28.07.2000, dismissed the said application, inter alia, holding that summons had been duly served upon the first respondent. It was furthermore noticed that the first respondent herein, while examining himself in the said proceedings under Order IX Rule 13 of the Code of Civil Procedure in his cross-examination, admitted that one and a half year prior to filing of the said application, he and his brother approached Dharam Singh for getting the judgment and decree set aside but he negated their plea.
Findings of the Trial Court and First Appellate Court
4. An appeal was preferred thereagainst. The Appellate Court also affirmed the said finding holding:
12. In this case, Ex.A1 to Ex.A3 are the record of ownership which is not disputed. Ex. R3 is the copy of summon which clearly shows that Subhash refused to accept the service of summons. It also shows that the copy of summons was affixed on his house. This report is duly attested by clerk of Court as per Ex.R4/B and affidavit has also been given by Jogi Ram process server. Subhash was to appear in court on 7.5.85 but he did not appear in court, and then the court ordered for substituted service. But after munadi effected in the village also, the defendant failed to appear in court as per Ex.R1. Ex.R2 is the report of Ram Mehar, process server who effected the munadi. No doubt Nand Lal Chowkidar denied his thumb impression, but it carried no help to the defendant in view of the statement of RW-1 Ram Mehar, process server. There is no report on the file that the summons does not bear the thumb impression of Nand Lal Chowkidar. Statement of PW2 Nand Lal is self-contradictory as he pleaded no knowledge that the process server affixed the copy of summons on the house of Subhash. He also stated no knowledge that about ten years back court officials brought this summon to him. He showed ignorance about the pendency of the case and the munadi effected twelve years back. He has even not been able to tell that he was shown as a witness. There is no reason to disbelieve the statement of Ram Mehar, process server with regard to the report of refusal of Subhash. Appellant RW-2 Dilbag Rai Jain also proved that the summons were duly executed upon the defendant who refused to accept the same. So there is no illegality or irregularity in the service of summons. Rather the learned trial court gave double opportunity after the refusal by the defendant to appear in court as well as by getting the defendant served through munadi. Since the defendant intentionally did not appear in court, the trial court rightly passed the ex parte judgment and decree dated 19.2.86.
13. Admittedly the decree under challenge was passed in the year 1986 while the application for setting aside the ex parte decree was filed on 6.2.97, almost eleven years after passing of the decree. Regarding delay in filing the application, the defendant tried to prove that he came to know recently about the decision of the case, but this version is not tenable when PW1 Ram Mehar stated that about 1-1/2 years back he alongwith his brother went to Dharam Singh who told them that they have no concern with the plot and he would not set aside the decree. He also stated that he told his relatives 10/11 days prior to filing this application. This clearly shows that the defendant was well aware of the decree in question and could file the application within one month. He is to explain each day of delay. So the application is time barred. Thus, the findings of the learned trial court under issue No.1 and 2 are affirmed against the appellant-defendant and in favour of the respondents-plaintiffs.
Reversal by the High Court in Revision
5. The Revision Application filed thereagainst by the first respondent herein was allowed by the High Court. The High Court in the impugned judgment opined that the appellant had played fraud on the Court as neither summons were properly served, nor publication was made in newspapers. Order V Rule 19A of the Code of Civil Procedure, which, according to the High Court, could have been taken recourse to, had not been resorted to. Adverse comments were also made by the High Court regarding the application for mutation filed by the appellant after 10 years, in 1996.
Supreme Court Analysis and Statutory Interpretation
6. The approach of the High Court, in our opinion, was not correct. There exists a presumption that official acts have been performed in the ordinary course of business. Admittedly, an ex parte decree was passed. Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit ex parte in regular civil dispute procedure.
Statutory Limitation Period Under Article 123
7. Article 123 of the Limitation Act, 1963 provides for 30 days time for filing such an application. The provision reads thus:
| Description of application | Period of Limitation | Time from which period begins to run |
|---|---|---|
| 123. To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte. | Thirty days | The date of decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. |
Explanation: For the purpose of this article, Substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service.
Application of Limitation and Knowledge of Decree
8. Thus, even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent or the service of summons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing of the ex parte decree. Even in cross-examination, the first respondent categorically admitted that he had approached the appellant herein for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex parte decree. The period of limitation would, thus, be reckoned from that day. As the application under Order IX Rule 13 of the Code of Civil Procedure was filed one and a half year after the first respondent came to know about passing of the ex parte decree in the suit, the said application evidently was barred by limitation.
Mandatory Jurisdictional Bar Under Section 3 Limitation Act 1963
9. In terms of Section 3 of the Limitation Act, 1963, no court shall have jurisdiction to entertain any suit or application if the same has been filed after expiry of the period of limitation. The High Court could not have ignored the said jurisdictional fact.
Final Order and Conclusion
10. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed with costs. Counsel fee is assessed at Rs. 10,000/- (Rupees ten thousand only).