The limitation period for setting aside an ex-parte decree begins to run from the date of the decree or, where the summons or notice was not duly served, when the applicant had knowledge of the decree.

( 1 ) THIS appeal is against the order dated June 13, 1968, of Mr. S. C. Ahuja, Sub-Judge First Class, Delhi, whereby he dismissed the application which had been filed by the appellant for setting aside the ex-parte decree passed by the trial Court on 13th May, 1966.

( 2 ) THE short facts relevant to the controversy which has been raised in this appeal are that the appellant is one of the guarantors in respect of the motor vehicle bearing registered No. U. P. D. 8312 for the purchase of which an advance was made by respondent No. 1 to one Devka Partap Singh. Since disputes had arisen between the parties, reference was made to an arbitrator and, upon the making of the award, respondent No. 1 filed an application in the trial Court to make the award a rule of the Court.

( 3 ) NOTICES of this application and of the filing of the award were issued to the various parties. In so far as the appellant is concerned notices were issued to him on 13th January, 1966 and 16th February, 1966 but he was not served for these dates. The case was, therefore, adjourned to 16th March, 1966 for which date also the appellant was not served as he was reported to be out of station. Then the case was adjourned to 16th April, 1966 for which date notices were ordered to be issued to the appellant amongst others. However, on 16th March, 1966 the trial Court passed a suo-motu order for effecting substituted service on, inter alia, the appellant and he ordered this service to be effected by publication in "ekta Sandesh". Upon the publication having been made, a decree in terms of the award was passed ex-parte by the trial Court on 13th May, 1966.

( 4 ) RESPONDENT No. 1 appears to have taken out execution of this decree and the vehicle, in question, was attached on 4th January, 1967. It was then that on 13th January, 1967, the appellant filed an application under Order 9, rule 13, of the Code of Civil Procedure for setting the ex parte decree aside. This application was dismissed by the order which is under appeal.

( 5 ) TWO issues were framed by the trial Court. The first issue was whether there was sufficient cause to set aside the ex-parte decree and the second issue was whether the application was within time.

( 6 ) ON the second issue, the trial Court held that the application was barred by time. The trial Court took into consideration the fact that the petitioner had been served on 16th April. 1966 whereas the application for setting aside the decree was made on 13th January, 1967. In taking 16th April, 1966, for which date the appellant was served by substituted service, as the date from which the time would begin to run, the trial Court was clearly in error. Article 123 of the Limitation Act, 1963, provides, inter alia for setting aside a decree passed ex-parte. The period of limitation prescribed is thirty days and the time from which the period begins to run is the date of the decree or where the summons or notice was not duly served, when the applicant had the knowledge of the decree. The explanation to this Article makes it clear that substituted service under rule 20 of Order 5 of the Code of Civil Procedure shall not be deemed to be due service. Therefore, the time would begin to run not from 16th April, 1966 when the appellant is alleged to have been served by substituted service but from the date of his knowledge of the decree. Such knowledge came to the appellant on 4th January, 1967 when the aforesaid vehicle was attached in execution of the decree. There is no evidence on behalf of respondent No. 1 from which any conclusion can be arrived at except this that the appellant came to know of the decree only on 4th January, 1967. If this is the date from which the time would begin to run then the application for setting aside the ex-parte decree which was filed on 13th January, 1967 was clearly within time. I, therefore, hold that the application filed by the appellant was filed within time.

( 7 ) ON the first issue reliance i