Article 164 of the Limitation Act does not apply to applications to set aside decrees in summary suits.

1. An interesting point, which does not seem to have been covered by a decision of any High Court so far, arises on this appeal. The respondents filed a summary suit against the appellants on the 1st July 1955 and the summons was served on 1st September 1955. The appellants failed to file an appearance and a decree was passed on 16th September 1955. The decree was sealed on 17th November 1955 and a copy of the decree was served upon the appellants on 24th November 1955. On 3rd December 1955 the appellants took out a notice of motion to set aside the decree and Mr. Justice Coyajee dismissed that motion taking the view that the notice of motion was barred by limitation.

2. Now, if limitation begins to run from the date of the decree, viz., 16th September 1955, and Art. 164 of the Limitation Act applies, then prima facie the notice of motion is barred by limitation. Mr. Gauba wanted to argue that limitation begins to run not from 16th September 1955 when the decree was passed, but from 17th November 1955 when the decree became effective by its being sealed. But in our opinion it is unnecessary to consider that aspect of the matter because Mr. Gauba is on much stronger ground when he takes up the contention that Article 164 does not apply to the notice of motion taken out by his clients. Article 164 only applies when there is an ex parte decree or order and an application is made to set aside such an order or a decree, and the question that we have to consider is whether looking to the provisions contained in the Code with regard to a summary suit it could be said that the present decree which is challenged was an ex parte decree. Order 37 deals with summary suits. It is a self-contained Order which lays down the procedure for dealing with summary suits, and although Rule 7 provides that the procedure in suits under this Order shall be the same as the procedure in suits instituted in the ordinary manner, that is, subject to the provisions contained in Order 37. Rule 2 (2) of Order 37 provides:

"In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be en-titled to a decree."

Rule 3 provides for the Court giving leave to the defendant to appear it sufficient cause is shown by the defendant; and Rule 4 gives power to the Court to set aside the decree passed under this Chapter if there are special circumstances. When we turn to Order 9, Rule 6 which provides for ex parte decree, the provision applies where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, and Mr. Guptes submission before us was that it will apply whatever may be the reason for the defendant not appearing, if in fact he did not appear and a decree was passed in his absence. It seems to us that in order that Order 9, Rule 6 should apply there must be negligence or default on the part of the defendant resulting in his not appearing at the hearing. But Order 9, Rule 6 does not and cannot contemplate a case where the defendant doss not appear because in law he cannot appear and where the law bars him from appearing. The idea underlying Order 9, Rule 6 is that the defendant could appear but in fact has not appeared. But when the defendant could not appear at all, when however anxious he might be to appear he was precluded from appearing by law, it could not be said in the language of Order 9, Rule 6 (1) that the defendant did not appear. It will be noticed that under Order 9, Rule 7 if an ex parte hearing of a suit is adjourned and if the defendant appears at the adjourned hearing and assigns good cause for his previous non-appearance, it is open to the Court to permit him to be heard