JAGAT NARAYAN, C.J.—This is a revision application by the plaintiff against an order of Munsif, Kanore, setting aside an ex parte decree passed in his favour on 17-12-70.

2. The relevant facts are these. Badri Narayan, petitioner plaintiff, filed a suit against Panchayat Samiti. Dhariawad. valued at Rs. 2 822/- in the Court of Civil Judge, Udaipur. The pecuniary jurisdiction of Munsifs at that time extended only up to Rs. 2,000/-. Summons was duly served on the defendant, issues were framed and the evidence of the plaintiff was recorded in part on 17.4 70 by the learned Civil Judge. Both the parties were present in his Court on that date and the case was adjourned to 6-8-70 for completing the statement of Badri Narayan and for recording the evidence of his remaining witnesses.

3. Before 6-8-70 the pecuniary jurisdiction of Munsifs was extended to Rs. 5,000/- and this suit was accordingly transferred to the Court of Munsif, Kanore, by an order of the District Judge, Udaipur, dated 6-7-70. This order was recorded on the order-sheet of the file of the learned Civil Judge and the file was sent to the Court of Munsif, Kanore.

4. The file was put up before Munsif, Kanore, on 26-8-70 and on that date he fixed 3-11-70 for further hearing of the suit and directed that notices be issued to the parties. The notice was duly served on the plaintiff and he appeared in the Court of Munsif. Kanore. on 3-11-70. The notice for the defendant was issued in the name of the Vikas Adhikari the defendant being the Panchayat Samiti. It was accepted by the despatch clerk of the Panchayat Samiti who signed on the back of the notice on 24-9-70 in token of having received it. On 3-11-70, however, the Panchayat Samiti did not appear before the learned Munsif. Ex parte evidence was recorded on 9 12-70 and an ex parte decree was passed on 17-12 70 against the Panchayat Samiti.

5. The present application for setting aside the ex parte decree was filed by the Panchayat Samiti on 24-3 71. It was opposed by the plaintiff inter alia on the ground that it was barred by limitation under Art. 123 of the new Limitation Act, which corresponds to Art. 164 of the old Limitation Act. Art. 123 runs as follows —

123. To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte. Thirty days The date of the decree where the summons or notice was not duly served, when the applicant had knowledge of the decree.

Explanation—

For the purpose of this article substituted service under R. 20 of O. 5 of the Code of Civil Procedure, 1908 shall not be deemed to be due service.

6. The learned Munsif was of the opinion that when the case was transferred to the Court of Munsif, Kanore, it was necessary for him to serve a fresh summons on the defendant. The learned Munsif did not issue any fresh summons, but only issued a notice informing about the next date of hearing. In this notice the name of the defendant was shown as Vikas Adhikari. The name of the plaintiff was correctly shown. The object of the suit, the relief claimed and its valuation were also correctly shown. For the sole reason that the defendant was shown as Vikas Adhikari the learned Munsif held that this summons was not duly served on the defendant. He, therefore, held that limitation under Art. 123, began to run from the date of knowledge. As knowledge is a question of fact, he fixed a date for recording the evidence of the parties on this question.

7. On the next date, however, he held that as no summons was issued for the defendant the question of knowledge did not arise and he set aside the ex parte decree purporting to act under sec. 151, C.P.C.

8. I have heard the learned counsel for the parties at length and I am satisfied that the order of the learned Munsif is erroneous. The consensus of the Judicial opinion is that the "summons" referred to in third column of Art. 123 refers to the summons to be served on the defendant for the first hearing of the suit, namely, the first summons served in the suit

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