The main legal point established in the judgment is the interpretation of the word 'knowledge' in Article 164 of the Indian Limitation Act, 1908, and its application to setting aside an ex parte decree.

Krishnaswami Ayyangar, J.

1. This is a petition by the defendant in a suit on the file of the Court of Small Causes at Madras to revise an order passed by that Court refusing to set aside an ex parte decree passed against him on the 30th of April, 1938.

2. The suit was filed on the 26th of January, 1938 and the first date fixed for hearing was the 2nd of March, 1938. A summons was taken out for service on the defendant with reference to the hearing on the 2nd of March, 1938, but it was not served. The suit was adjourned to the 22nd of March, 1938, for which date a fresh summons was taken out. Unfortunately, this summons was served upon the defendant only on the 29th of March which is, it will be noticed, a week later than the date fixed for hearing. No further summons appears to have been taken out but on the 30th of April, 1938, the suit was taken up and an ex parte decree was passed against the defendant who did not appear on that date. On the 15th of June, 1938, the defendant applied to the Court for setting aside the ex parte decree with the result already mentioned.

3. The reason for the refusal of the learned Judge of the Court of Small Causes to set aside the ex parte decree was that the application was barred by limitation under Article 164 of the Indian Limitation Act, 1908. In his affidavit in support of the application, the defendant urged--and it was not denied--that he had knowledge of the decree only on the 10th of May, 1938. If the period of 30 days fixed by the Limitation Act is calculated from the 10th of May, 1938, the application would be in time as the 9th of June, 1938, which was the last day of the period was a holiday and the Court did not sit until the 15th of June, 1938. But the learned Judge was of opinion that when the summons was served upon the defendant; on the 29th of March, 1938, he became aware of the institution of the suit and he ought to have taken proper steps for ascertaining the final date for hearing. The learned Judge was apparently of the opinion that if steps had been taken and the enquiry proceeded, the defendant would have known that the suit had been fixed to the 30th of April, 1938. The learned Judge evidently regards this date as the starting point for the calculation of the period of limitation. I am unable to concur in this view.

4. Article 164 of the Indian Limitation Act which is the Article applicable to the present case fixes the point of time from which limitation is to run as follows:

The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree.

5. There are two alternative points of time indicated by the Art., (1) the date of the decree when a decree is passed after due service of summons or (2) the date on which the defendant had knowledge of the decree when the decree is one which had been passed without summons having been duly served upon him. The petitioner contends that it is the second clause that has application here, for according to him, this is a case where the summons was not duly served. He further contends that what is meant by knowledge in the article is actual knowledge and not merely the means of knowledge. The Article has reference to an application made under Order 9, Rule 13, and it is therefore necessary to go to that rule for understanding the proper meaning to be given to the expression " duly served " both in that rule and in the article under consideration. I am aware that the same expression also occurs in Order 5, Rule 19 but the meaning of the expression for the purpose of that rule different though it may be, can have no bearing on the construction of the article. The expression " duly served ", if literally understood, would seem to have reference rather to the mode of service, than to the propriety of the summons where it fixes a day of hearing, on which it would be impossible for the defendant to appear. But the former can hardly be the sense in which the expression is used in Order 9,