An application to set aside an ex parte decree must be made within thirty days from the date of the decree where the summons had been duly served on the defendants.

Choudhary, J.

1. This application by plaintiff 2 is directed against the order of the Subordinate Judge, 2nd Court, Patna, setting aside an ex parte decree passed in favour of the plaintiffs.

2. The petitioner along with opposite second party Nos. 8 to 17 instituted a suit for bhaoli rent against the defendants opposite 1st party for the years 1354 and 1355 Pasli. Before the institution of the suit the defendants had filed an application for commutation of rent under Sec. 40 Bihar Tenancy Act, and the commutation proceeding was pending at the time the suit was filed. The defendants having failed to obtain an order in the Court below for stay of the hearing of the suit till the decision in the commutation case, moved this Court and obtained an order for stay of the suit, but this Court gave a direction that in case the defendants did not prosecute the commutation case diligently, this Court would reconsider the stay-matter.

Ultimately, however, as it appears from the order of the learned Subordinate Judge, the stay-order was vacated. On 12-2-1952, the learned Subordinate Judge received an intimation that the commutation case had been disposed of, and he, therefore, passed an order to put up the case on 18-2-52. On that date, that is, on 18-2-1952, the lawyers of the parties were informed that the suit would be taken up for hearing on 28-2-1952, and their signatures were taken on the order-sheet in token of the information being given to them. On 28-2-1952, however, the defendants did not appear, and the suit was decreed ex parte.

On 1-5-1952, the defendants filed an application under Order 9, Rule 13, Civil P. C., for setting aside the ex parte decree alleging that they got knowledge of the decree on 23-4-1952. The learned Subordinate Judge accepted the contention of the defendants and set aside the ex parte decree. Against that order plaintiff 2 alone has come up to this Court in revision making the other plaintiffs as opposite party Nos. 8 to 17.

3. Mr. Ismaili appearing for the petitioner has contended that the ex parte decree having been passed on 28-2-1952, the application filed by the defendants for setting aside that decree on 1-5-1952, was much beyond time, and the court below was wrong in holding that the application was not time-barred. The relevant article applicable is Article 164, Limitation Act, which provides that limitation for an application by a defendant for an order to set aside a decree passed ex parte, is of thirty days to be counted from the date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree.

In this case there is no dispute about the service of summons on the defendants and the parties proceeded on the assumption that summonses were duly served on the defendants. That being so, the contention of the learned Counsel for the petitioner is that limitation in this case will not be counted from the date of the knowledge of the decree, or, in other words, the second part of Article 164 will not apply to that case and the application should have been filed under the first part, namely, within thirty days from the date of the decree.

In support of his contention he relied on --Rajashwari Prasad Singh V/s. Brahmanand Lal, AIR 1933 Pat 279 (A), but in this case there was a finding that summonses were not served on the defendants and their Lordships held that limitation would run from the date of the knowledge of the decree. Their Lordships did not decide what would happen if the summonses had been found to have been duly served.

The next case on the point is -- Tara Sankar Ghose V/s. Nasaruddi. AIR 1916 Cal 651 (B) in which a Division Bench of the Calcutta High Court held in circumstances similar to those in the present case that limitation would be counted from the date of the decree and not from the date of the tnowledse.

Their Lordships observed that

"Article 164 of the first schedule to the Limitation Act provides that an application by a defend