An erroneous decision on a question of limitation or a question of sufficient cause for setting aside an ex parte decree is an error in the exercise of jurisdiction and can be interfered with by the High Court under Section 115 of the Civil Procedure Code.

Sinha, J.

1. The plaintiffs are the petitioners, and the application in revision has been filed, under Sec.115, Civil P. C., against an order of the learned Munsif, dated 24-5-1952, allowing an application under Order 9 Rule 13, Civil P. C., for setting aside an ex parte decree dated 30-11-1951.

2. This case was first heard by a single Judge, and it has been referred to a larger Bench because certain authorities of this Court had held that an erroneous decision of the court below on the ques-tion of limitation was not revieabie by this Court nder Sec.115 of the Code.

3. The facts leading to the setting aside of the ex parte decree are as follows : The plaint was filed on 21-6-1951, claiming a certain amount of money as damages from the opposite party on ac-ount of non-delivery of a part of the consignment looked from Cawnpur to Monghyr. It appears that summons was served upon the defendant-op-posite party some time before 21-8-1951. On 21-8-1951, the order-sheet shows, the defendant did not. appear, and, therefore, the case was adjourned to 30-8-1951. On 30th of August, again, there was no appearance on behalf of the defendant, and the case was adjourned to 1-9-1951, for ex parte disposal. On 1-9-1951, the defendant di-d not appear, and the court fixed 22-9-1951, for ex parte disposal. On that date, again, the defendant was absent, and the date for ex parte disposal had to be extended to 25-9-1951. On 25-9-1951, again, there was no appearance on behalf of the defendant, and 26-9-1951 was fixed for ex parte hearing of the case.

It is to be noted that on all these dates the plaintiffs were present. On 26-11-1951, the suit was taken up for ex parte hearing, and the plaintiffs were heard and judgment was given on 30-11-1951, decreeing the suit. On 25-1-1952, an application was made on behalf of the defendant-opposite party under Order 9, Rule 13, Civil P. C., for setting aside the ex parte decree. In that application, it is alleged that the former railway lawyer, one Mr. S. C. Banerji, being ill, Mr. E. N. Chatterji had been appointed as the railway lawyer in the second week of September. On 6-11-1951, the railway law inspector had gone to Monghyr and had informed Mr. B. N. Chatterji that this case had been fixed up for disposal on 26-11-1951. It is said that Mr. B. N. Chatterji, learned lawyer, had asked one Boudhu Lal, railway clerk, to make a note of that fact, and Boudhu Lal, in his turn, so it is said, made a note of the same on some scrap of paper, but did not make mention of the case in the diary, and Boudhu Lal is alleged to have been informed of the ex parte decree on 6-1-1952, and that is the date of- knowledge of the defendant about the ex parte decree.

4. The learned Munsif, after hearing the parties, held that, although the application under Order 9, Rule 13, Civil P. C., should have been filed by 30-12-1951, and although on 2-1-1952, the court remained open, no work having been transacted on that date, the application was in time because the court remained closed from the 3rd of January to the 24th of January, 1952. He has also found that Mr. Chatterji was informed of the ex parte decree by Boudhu Lal on 6-1-1952, and in that view of the matter, he has held that the application filed on 25-1-1952, for setting aside the ex parte decree dated 30-11-1951, was filed in time.

5. The relevant article of the Limitation Act is Article 164 which prescribes thirty days for making an application for setting aside a decree passed ex parte by a defendant, from "the date of the decree or, where summons was duly served, when the applicant has knowledge of the decree." In the present case there is no dispute that the defendant was served with summons and, therefore the application had to be filed within thirty days from the date of the decree. There is no dispute again, that 30-11-1951 was the date of the decree. In that view of the matter the application should have been filed latest by 30-12-1951. The courts, being closed