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2023 Supreme(Gau) 1489
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
TILAK CHANDRA BHUYAN S/O LATE GOLOK CHANDRA BHUYAN – Petitioner
Versus
KHYEMU KUMARI DEVI W/O TAPAN DAS – Respondent
CRP No. 7 of 2023
Decided On : 06-06-2023
Advocate Appeared:
For the Petitioner: U. Dutta.
For the Respondents: S. Dutta, A. Upamanyu.
IMPORTANT POINT
The court established that proper service of summons is essential for the validity of a decree, and that the limitation period for setting aside an ex-parte decree should be calculated from the date the petitioner had knowledge of the decree.
Headnote:
LIMITATION - CONDONATION OF DELAY - Limitation Act, 1963 - Section 5; Code of Civil Procedure - Order IX Rule 13; Order V Rule 20 - The court discussed the provisions of Section 5 of the Limitation Act, which allows for the condonation of delay in filing applications, and emphasized the importance of proper service of summons as per Order V Rule 20 of the Code of Civil Procedure. The court found that the service was not duly effected as the summons was published in a newspaper not circulating in the locality where the petitioner resided, leading to the conclusion that the delay should be calculated from the date of knowledge of the decree, which was only 120 days, rather than the incorrectly stated 386 days. This miscalculation influenced the court's decision to condone the delay and set aside the ex-parte decree.
Fact of the Case:
The petitioner entered into a registered agreement for the sale of land with the respondent. A suit for specific performance was filed against the petitioner, who was not properly served as the summons was published in a newspaper not circulating in his known locality. The petitioner later sought to set aside the ex-parte decree, claiming he was unaware of the proceedings due to improper service.
Finding of the Court:
The court found that the service of summons was not properly executed as per the requirements of the Code of Civil Procedure. The delay in filing the application to set aside the ex-parte decree was only 120 days from the date of knowledge of the decree, not the 386 days claimed by the lower courts.
Issues: Whether the delay in filing the application under Order IX Rule 13 should be condoned based on the proper calculation of the limitation period and the validity of the service of summons.
Ratio Decidendi: The court held that the period of limitation for setting aside an ex-parte decree should be calculated from the date of knowledge of the decree, and that the service of summons must comply with the provisions of the Code of Civil Procedure. The failure to properly serve the petitioner invalidated the ex-parte decree.
Final Decision: The court allowed the revision petition, condoned the delay in filing the application under Section 5 of the Limitation Act, and set aside the ex-parte decree, directing the petitioner to file a written statement within 30 days.
JUDGMENT :
DEVASHIS BARUAH, J.
1. Heard Mr. U. Dutta, the learned counsel for the petitioner and Mr. S. Dutta, the learned senior counsel assisted by Mr. A. Upamanyu, the learned counsel appearing on behalf of the respondent.
2. The instant petition under Section 115 of the Code of Civil Procedure (for short, ‘the Code’) has been filed challenging the judgment and order dated 11.11.2022 passed by the learned Civil Judge, Lakhimpur, North Lakhimpur in Misc. Appeal No. 02/2022 whereby the appeal filed by the petitioner against the order dated 23.03.2022 passed by the Munsiff No. 1 in North Lakhimpur in Misc.(J) Case No. 18/2020 dismissing the application under Section 5 of the Limitation Act, 1963 for condoning the delay of 120 days in presenting the petition under Order IX Rule 13 of the Code, was rejected.
3. From a perusal of the materials on record, it transpires that a registered deed of agreement for sale of a plot of land measuring 1 katha 10 lechas covered by Dag No. 1338 of Patta No. 402 of North Lakhimpur Town (Part I), Mouza-Lakhimpur was entered into by the petitioner with the respondent on 25.06.2016.
4. It is relevant to mention herein that in the said registered deed of agreement, the address of the petitioner was specifically mentioned at A.S.E.B. Colony (Part), P.S.-Noonmati, P.O.-Narengi, Guwahati in the district of Kamrup (M), Assam. The said deed of agreement has been enclosed to the instant revision petition as Annexure-D. On the basis of the agreement for sale and for non-compliance of the same, a suit was filed on 26.04.2018 by the respondent herein against the petitioner before the Court of the Civil Judge, Lakhimpur, North Lakhimpur which was registered and numbered as Title Suit No. 9/2018. In the said suit, the address of the petitioner was mentioned as resident of Ward No. 14, P.O.-Khelmati, P.S.-North Lakhimpur in the district of Lakhimpur.
5. At this stage, this Court finds it relevant to take note of that the said suit was for specific performance of registered agreement for sale dated 25.04.2016. However, for reasons best known, the plaintiff/respondent herein did not find it relevant to put the address of the petitioner as mentioned in the registered deed of agreement but rather gave an address at North Lakhimpur. The record further reveals that summon was issued by the learned Trial Court and on 13.07.2018, taking into account that the summon was not duly served, an application was filed by the respondent/plaintiff of the suit for effecting service in substituted mode under Order V Rule 20 of the Code. It reveals that the learned Trial Court granted the permission on 13.07.2018 and thereupon on 05.08.2018, summons were duly published in the newspaper ‘Asomiya Pratidin’. On the basis of the said summon being served through substituted mode the learned Trial Court vide an order dated 28.08.2018 proceeded with the suit by deeming that the service upon the defendant/petitioner herein was complete. It further appears that on 14.12.2018, the learned Trial Court decreed the suit in favour of the plaintiff/respondent herein thereby directing the defendant/petitioner herein to execute and register a deed of sale in favour of the plaintiff/respondent herein in respect to the suit property on accepting the balance amount of Rs.1,00,000/-. The further materials on record shows that the petitioner herein filed two applications on 03.02.2020, one of such application was an application under Section 5 of the Limitation Act, 1963 for condoning the delay of 386 days for setting aside the ex-parte judgment and decree. The other application so filed was an application under Order IX Rule 13 read with Section 151 of the Code for setting aside the ex-parte judgment and decree on the ground that the service was not duly effected upon the petitioner.
6. The learned counsel for the petitioner submitted that while preferring the application under Section 5 of the Limitation Act, on account of the wrong advice, it was mentioned
