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In the High Court of Andhra Pradesh at Hyderabad
SYED QAMAR HASAN, J.
Mahanarayan Misra - Appellant
Versus
M/s. Lekraj Per Partner Chimanlal - Respondent
A.A.O. Nos. 138 & 408 of 1959, & C.R.P. No. 1552 of 1959
Decided on : 28-11-1960
Order 9, Rule 13(2) C.P.C., which made Section 5 of the Limitation Act applicable to applications for setting aside ex parte decrees, was a matter of procedure and, therefore, had retrospective operation.
Headnote:
ORDER 9 RULE 13 C.P.C. - SETTING ASIDE EX PARTE DECREE - O. 9, R. 13(2) C.P.C. - APPLICABILITY - RETROSPECTIVE OPERATION - SUFFICIENT CAUSE - HOLIDAY FIXED AS DATE OF HEARING - NOTICE OF NEXT DATE OF HEARING.
Fact of the Case:
The appellant filed an application under Order 9, Rule 13, C.P. Code for setting aside the ex parte decree passed against him. The application was filed beyond the period prescribed by Art. 164, Limitation Act. The appellant relied on the fact that the date fixed for hearing was a holiday and he was not intimated of the next date of hearing.
Finding of the Court:
The court held that Order 9, Rule 13(2) C.P.C., which made Section 5 of the Limitation Act applicable to applications for setting aside ex parte decrees, was a matter of procedure and, therefore, had retrospective operation. The court also held that the appellant had not shown sufficient cause for his absence on the date of pronouncement of the judgment.
Issues: 1. Whether Order 9, Rule 13(2) C.P.C. had retrospective operation? 2. Whether the appellant had shown sufficient cause for his absence on the date of pronouncement of the judgment?
Ratio Decidendi: 1. Order 9, Rule 13(2) C.P.C. was a matter of procedure and, therefore, had retrospective operation. 2. The appellant had not shown sufficient cause for his absence on the date of pronouncement of the judgment.
Final Decision: The court allowed the appeal, set aside the order appealed against, and ordered the suit to be tried and disposed of according to law.
JUDGMENT :
C.M.A. Nos. 138/59, 408/59 and C.R.P. 1552/59 have been argued before me at great length.
2. C.M.A. 138/59 is an appeal by the defendant against the order dated 25-9-1958 dismissing the appellant's application under order 9, Rule 13, C.P. Code for setting aside the exparte decree in O.S. 11-1-56 made on 15-11-57.
3. The application was filed on the allegation that on 26-6-1956 when the suit was posted for recording the appellant's evidence, he was on bed by reason of influenza. On the strength of a medical certificate the adjournment prayed for was granted. But according to him he was laid up for a long time. The case was adjourned to 17-7-57 and without setting him ex-parte, dates for hearing were adjourned and the case was posted to 7-10-57 which was a declared holiday and finally the suit was decreed on 15-11-57. The appellant's contention was that he was ignorant of all this and was under the impression that the suit was undergoing adjournments and that he would be intimated of the date of hearing. It was only when an attachment order was affixed to the door of his house he came to know that a decree had been passed against him on 15-11-57.
4. The application was admittedly beyond the period prescribed by Art. 164, Limitation Act. To show sufficient cause for delay, he relied on the facts mentioned above.
5. The respondent-decree-holder resisted and contended that the application was liable to be dismissed in limine in as much as the suit was decided on merits as contemplated by Order 17. R. 3, C.P. Code, an appeal was proper remedy for the appellant and not a petition under Order 9, Rule 13, C.P. Code. The next plea on behalf of the respondent related to the bar of limitation. He also traversed the other allegations which according to the appellant constituted sufficient cause not only under order 9, Rule 13 but also under Section 5 of the Limitation Act.
6. The learned Third Additional Judge, City Civil Court, Secunderabad, held the application to be barred by time. With regard to the plea that an appeal was proper remedy for the appellant, he held that the judgment delivered on 15-11-57, was not one under Order 17, Rule 3 but under R. 2 of the same order, as has been held in ??? Bhayankarem Pichamma v. Kamisetti Sreeramulu1 and N. Basavayya v. The State of Andhra Pradesh2. On the merits he found that the appellant had failed to establish sufficient cause for his absence, and in that view of the matter he dismissed the application with costs.
7. The arguments in this appeal covered a wide field and a number of authorities were cited before me. The discussion however narrowed down to the question of limitation and sufficiency of the cause for the absence of the appellant on and till the date of pronouncement of the judgment. Before I shall take up the question of limitation, I may mention that on the date of application the Indian Civil Procedure Code which was made applicable to the State of Hyderabad by Act II of 1951, was in extant. Order 9, Rule 13 did not contain any provision making Sec. 5 of the Limitation Act applicable to applications for setting aside ex parte decrees. But at the time when the present application came on for hear-before the learned Third Judge, O. 9, R. 13 as amended by the Madras High Court stood applicable by virtue of Notification Roc. 4168 = 57-B-1 issued by the Andhra Pradesh High Court. The sub-rule (2) was added to Order 9, rule 13 by the Madras High Court and it reads:—
“The provisions of S. 5 of the Indian Limitation Act 1908 shall apply to applications under sub-rule (1).”
8. It would thus be apparent that on the date when the appellant presented the present application, he was not entitled to the concession embodied in S. 5 of the Limitation Act and, therefore, the application was obviously time-barred and liable to be dismissed in in limine.
9. The learned Advocate for the appellant contended that sub-rule (2) of O. 9, R. 13 enacts a matter of procedure, therefore, it would
