The period of limitation for setting aside an ex parte decree commences from the date of the decree itself, unless the summons or notice was not duly served.

ISMAIL, J. :- This is an appeal against the order of Ramanujam J. dated 15-10-1976. The matter lies in a very narrow compass.

The respondent herein was the third defendant in O. S. No. 733 of 1972, on the file of the Court of the Subordinate Judge, Coimbatore. After a preliminary decree was passed therein, the final decree proceedings had taken place. Notice was served on the respondent herein and he was represented by counsel. His counsel was taking time for filing counter affidavit on behalf of the respondent and at a particular stage, the counsel reported no instructions. Thereafter, the ex parte final decree was passed on 26-11-1974. Subsequently, on 1-4-1975, the respondent herein filed I. A. No. 63 of 1975 under Order 9, Rule 13 C.P.C. to set aside the ex parte final decree on the ground that his non-appearance before court on the day of the hearing of the final decree proceedings was due to the fact that the plaintiff represented to him that he world not proceed against the mortgaged properties, that he would exonerate the respondent and that he would have recourse only to the subsequent purchaser of the Mills. The learned Judge did not accept the explanation offered by the respondent herein and held that the respondent should be taken to be aware of the ex parte final decree even on 26-11-1974 and, therefore, the application filed on 24-1-1975 should he rejected as being out of time. It is against that Order A.A.O. No. 591 of 1975 was preferred to this court which was disposed of by Ramanujam J. by the impugned order.

2. The learned Judge took the view that the application for setting aside the ex parte decree had to be considered on merits and should not have been dismissed on the ground of limitation. The learned Judge pointed out that it was the that the ex parte decree came to be passed on 26-11-1974, after the respondent's counsel reported no instructions, but unless it was shown that the counsel informed about the passing of the final decree to the respondent, knowledge could not be attributed to the respondent, with the result, the learned Judge allowed the appeal and directed the lower court to dispose of I. A. No. 63 of 1975 on merits. It is against the order of Ramanujam J. that the present appeal under Cl.15 of the Letters Patent has been filed.

3. As we pointed out already, the matter lies in a very narrow compass. Art.123 of the Schedule to the Limitation Act of 1963, reads as follows :-

Period of limitation Time from which period begins to run

123. To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte.

Description of application Thirty days The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. Thus, the starting points of limitation are two. Once is the date of the decree and the other is the date of the

knowledge of the decree. With reference to the second the condition to be satisfied is that no summons or notice should have been duly served. Thus, it is clear that a person applying for setting aside an ex parte decree can claim the period of limitation to commence from his knowledge of the decree only in a case where the summons or notice was not duly served. In other cases, limitation commences from the date of decree itself. In this particular case, as we pointed out already, in the final decree proceedings, the respondent herein was represented by counsel who took time for filing counter more than once and finally reported no instructions. Therefore, the present is a case which falls under the first alternative in the third column to Art.123 of the Schedule to the Limitation Act, 1963, and not under the second alternative where alone the date of knowledge of the decree is irrelevant. In view of this crucial feature, we al