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1962 Supreme(All) 17
IN THE HIGH COURT OF ALLAHABAD
S. C. Manchanda, J.
BACHCHA - Appellant
Versus
KAMESHWAR PRASAD SINGH - Respondents
F. A. F. O. 281 Of 1958
Decided On : 01/25/1962
Banwari Prasad, Mansingh
Headnote:
LIMITATION ACT - ARTICLE 169 - ORDER XLI RULES 12 AND 14 C. P. C. - INTERPRETATION - "NOTICE OF APPEAL" MEANS NOTICE TO RESPONDENT OF ACTUAL DATE OF HEARING FIXED FOR DISPOSAL OF APPEAL - APPLICATION FOR REHEARING OF APPEAL HEARD EX PARTE WITHIN 30 DAYS FROM DATE OF KNOWLEDGE OF DECREE IS WITHIN TIME.
Fact of the Case:
The defendant-appellant filed an appeal which was put up for the first time before the District Judge on 22nd January 1955. A notice was issued to the defendant-respondent in the usual form, giving the date of hearing as 13th April 1955. The defendant-respondent filed his Vakalatnama on that date, but no date was fixed for the hearing of the appeal. On 25th October 1956, the court fixed the hearing of the appeal for 1st December 1956 and specifically directed that counsel for the parties be informed of the date so fixed. The defendant-respondent's counsel was not given any information of this date. The appeal was adjourned for want of time on 1st December 1956 and again adjourned to 18th February 1957. The defendant-respondent and his counsel were not present on either of these dates as they had no notice of the hearings. The court recorded that the respondent was not present and heard the appeal ex parte, reserved judgment, and fixed 23rd February 1957 for pronouncing judgment. The defendant-respondent also had no notice of the date fixed for pronouncing the judgment. On 23rd February 1957, an ex parte decree was passed by the District Judge allowing the appeal of the plaintiff-appellant. The defendant-respondent moved an application for rehearing the appeal decided ex parte under Order XLI Rule 21 C. P. C. on 1st May 1957, within 30 days of the knowledge of the decree. The application was rejected by the District Judge on the ground that it was barred by time under Article 169 of the Indian Limitation Act.
Finding of the Court:
The court held that the words "notice of appeal" in Article 169 of the Limitation Act mean the notice to the respondent of the actual date of hearing fixed for the disposal of the appeal. The appellant or his counsel not having received any such notice of the date fixed for hearing of the appeal in spite of the specific order by the court that the counsel for the parties should be informed this case would, in the court's judgment, fall within the second part of Article 169 and the limitation of 30 days will run only from the date of the knowledge of the decree. The application, therefore, for the rehearing of the appeal heard ex parte was clearly within time.
Issues: 1. Whether the words "notice of appeal" in Article 169 of the Limitation Act mean the notice to the respondent of the actual date of hearing fixed for the disposal of the appeal? 2. Whether the application for rehearing of the appeal heard ex parte was within time?
Ratio Decidendi: The court interpreted the words "notice of appeal" in Article 169 of the Limitation Act to mean the notice to the respondent of the actual date of hearing fixed for the disposal of the appeal. The court reasoned that the scheme of the Code of Civil Procedure for proceedings for appeals and suits being different, the rulings under Article 164 relating to suits can have no bearing on the interpretation of the aforesaid material words of Article 169 which relate to the setting aside of an ex parte decree in appeal. The court also relied on the observations of Bhide, J. in Nil Chand v. Himal Chand, AIR 1940 Lah 49, where it was held that the expression "notice of appeal" should be taken to mean notice (actual or constructive) of the date on which the appeal is disposed of.
Final Decision: The court set aside the order of the court below and restored the appeal to the file of the District Judge at its original number with the direction that he will rehear the appeal and dispose it of in accordance with law on condition that costs of Rs. 50/- are paid to the plaintiff-respondent on or before the date of hearing fixed.
( 1 ) THIS is a defendants appeal against the order of the District Judge dated the 24th August, 1957 refusing to rehear the appeal dismissed ex parte on the ground that the decree was passed on 23-2-1957 and the application for setting aside the ex parte decree having been filed on 1-5-1957 it was barred by time under the provisions of Article 169 of the Indian Limitation Act.
( 2 ) THE plaintiff had filed an appeal which was put up for the first time before the District Judge on the 22nd January 1955, An order was passed, admit, let notice issue to the defendant-appellant. In the notice which was issued in the usual form, as given in form No. 6 of the 1st schedule to the C. P. C. , the date given was the 13th April 1955. The endorsement thereon was that the defendant-respondent should file the Vakalatnama on the 13th April 1955. The Vakalatnama by the respondent to that appeal was duly filed on 13th April 1955. On that date, however, no date was fixed for the hearing of the appeal and the order passed was that the defendant-respondent had filed his memo and a date will be fixed for fixing a date for hearing. Thereafter, on the 25th October 1956, of which the defendant-respondent had no notice, the court fixed the hearing of the appeal for 1-12-1956 and specifically directed that counsel for the parties be informed of the date so fixed. The date fixed was 1-12-1956. The counsel for the defendant-respondent, however, was not given any information of this date. On 1-12-1956 the appeal was adjoumed for want of time. Of course, the defendant-respondent or his counsel were not present as they had no notice of this hearing. The case was again adjourned to 18-2-1957. The respondent and his counsel not having had any notice of this date either, naturally, were not present. The court recorded that the respondent was not present and heard the appeal ex parte, reserved judgment and fixed the 23rd February 1957 for pronouncing judgment. The defendant-respondent had also no notice of the date fixed for pronouncing the judgment i. e. , the 23rd February, 1957. On the latter date an ex parte decree was passed by the District Judge allowing the appeal of the plaintiffs appellant.
( 3 ) ON 1-5-1957, the defendant moved an application for rehearing the appeal decided ex parte under Order XLI Rule 21 C. P. C. This was accompanied by an affidavit of the defendant applicant wherein it was averred that neither he nor his counsel had any knowledge of the date fixed in the case, that it was only one day before that he had learnt in the village that the appeal of the plaintiff, appellant had been allowed ex parte and that the defendant applicant on inspecting the records of the appeal found that an ex parte decree had in fact been passed on 23-2-1957. Thereupon, an application for restoration was filed on 1-5-1957 within 30 days of the knowledge of the decree. A counter-affidavit was also filed stating that the defendants-applicants knew of the date fixed which was 18-2-1957, for the hearing of the appeal but no mention was made of any knowledge by them of the date fixed by the court for pronouncing the judgment. The restoration application, as already observed. was rejected by an order dated 24-8-1956 in these words:
"heard parties. Notice of appeal was served on the applicant. Decree was passed on 23-2-1957. The present application filed on 1-5-1957 is me barred under Article 169. Rejected. Costs on parties".
Hence the appeal.
( 4 ) THE question which falls for consideration is as to the meaning of the words which occur in article 169 of the Indian Limitation Act: "where notice of the appeal was not duly served. " article 169 of the Indian Limitation Act uses more or less the same phraseology as Article 164. The latter provides the period of limitation for setting aside a decree passed ex parte in the absence of the defendant and the former i. e. , Article 169 for the rehearing of an appeal heard ex parte. Articles 164 and 169 of
