Judgement

BACHAWAT, J. : This appeal incidentally raises a question of interpretation of Art. 164 of the Indian Limitation Act, 1908. The respondent instituted two suits against the appellant in the court of the first civil judge, Kanpur. Suit No. 25 of 1958 was for the recovery of moneys due on a mortgage for Rs. 50,000. Suit NO. 22 of 1958 was to recover a sum of Rs. 8,000 due on a ruqqa. On May 15, 1958,both the suits were decreed ex parte. The appellant filed an application to set aside the ex parte decree passed in suit No. 22 of 1958. This application was numbered as miscellaneous case No. 104 of 1958. On August 16, 1958, the first civil judge, Kanpur, passed an order setting aside this ex parte decree on certain conditions. The order sheet in O. S. No. 2a of 1958, Misc. Case No. 104 of 1958 on August 16, 1958 stated :

"Heard parties counsel, accept the applicant s affidavit and hold that due to non service applicant was prevented from being present. Allowed on condition of payment of Rs. 150 --as costs within a month and on condition that allotment shall continue.

Sd./- K. N. GOYAL,

16th August, 1958

Applicant is hereby informed of connected decree of 25 of 1958 as well.

Sd./- K. N. GOYAI,,

16th August. 1958."

2. An appeal by the appellant from this order was dismissed on September 25, 1958. On February 5,1959, an advocate employed by the appellant to file a civil revision petition against the appellate order, obtained a certified copy of the order dated August 16, 1958. On February 24, 1959, a civil revision petition was filed by the appellant against the appellate order. On April 16, 1959, the appellant filed an application in the court of the first civil judge, Kanpur, under O. 9, R. 13, C. P. C., for the setting aside of the ex parte decree passed in suit No. 25 of 1958. The civil judge dismissed the application. An appeal from this order filed by the appellant was dismissed by the High Court. Both the courts held that the summons in suit No. 25 of 1958 was not duly served on the appellant but as more than 30 days had expired after the appellant had knowledge of the ex parte decree, the application was barred by limitation under Art. 164 of the Indian Limitation Act 1908. The appellant now appeals to this Court by special leave.

3. Under O. 9, R. 13, C. P. C., a decree passed ex parte against a defendant is liable to be set aside if the summons was not duly served or if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing. If the summons is not duly served, the defendant suffers an injury and he is entitled ex debito justitiae to an order setting aside the ex parte decree provided he applies to the court within the prescribed period of limitation. Under Art. 164 of the Indian Limitation Act 1908, the period of limitation for an application by a defendant for an order to set aside a decree passed ex parte was 30 days from "the date of the decree of the summons was not duly served, when the applicant had knowledge of the decree." The onus is on the defendant to show that the application is within time and he had knowledge of the decree within 30 days of the application. If the defendant produces some evidence to show that the application is within time, it is for the plaintiff to rebut this evidence and to establish satisfactorily that the defendant had knowledge of the decree more than 30 days before the date of the application.

4. In Pundlick Rowji v.Vasantrao Madhavrao, (1909) 11 Bom LR 1296 Davar, J., held that the expression knowledge of the decree" in Art. 164 means knowledge not of a decree but of the particular decree which is sought: to be set aside, certain and clear perception of the act that the particular decree had been passed against him. On the facts of that case, Davar, J., held that a notice to the defendant that a decree had been passed against him in the High Court suit No. 411 of 1909 in favour of one Pundlick Rowil with whom he had no dealings was n