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Allahbad High Court
D.S.MATHUR
Kiran Devi - Appellant
Versus
Abdul Wahid - Respondent
Decided On : 12/21/1964
GUARDIANS AND WARDS ACT - S. 25 - O. IX, R. 13, C.P.C. - LIMITATION ACT, 1908 - ARTS. 164, 181 - APPLICATION TO SET ASIDE EX PARTE ORDER - LIMITATION - WHETHER ART. 164 OR ART. 181 APPLIES.
Fact of the Case:
The applicant, Smt. Kiran Devi, filed an application under O. IX, R. 13, C.P.C. read with S. 141, C.P.C. for setting aside the ex parte order passed in the proceeding under S. 25 of the Guardians and Wards Act started on the application of Abdul Wahid, the opposite party. The District Judge dismissed the application on the ground that it was barred by limitation as it was filed more than 30 days after the passing of the ex parte order.
Finding of the Court:
The court held that Art. 164 of the Limitation Act, which prescribes a limitation period of 30 days for applications to set aside ex parte decrees, does not apply to applications for setting aside ex parte orders. Such applications are governed by the residuary clause contained in Art. 181 of the Limitation Act, which prescribes a limitation period of three years.
Issues: Whether Art. 164 or Art. 181 of the Limitation Act applies to applications for setting aside ex parte orders passed in miscellaneous proceedings.
Ratio Decidendi: The court reasoned that the word "decree" in Art. 164 of the Limitation Act must be given the meaning assigned to it in the Code of Civil Procedure, which defines a decree as the formal expression of an adjudication that conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. An ex parte order passed in a miscellaneous proceeding does not amount to a decree, as it is not a final expression of adjudication and is not made in a suit.
Final Decision: The court allowed the revision petition, set aside the order of the District Judge, and remanded the application for setting aside the ex parte order to the District Judge for disposal in accordance with the law.
2. The present application under S. 25 of the Guardians and Wards Act was made on 2-2-1960 with the allegations that the two minor daughters of Smt. Kiran Devi were born through the applicant, Abdul Wahid, and he being the father was their lawful guardian and was entitled to their custody. It was prayed that the Court be pleased to make an order for their return and for the purpose of enforcing the order may cause the minors to be arrested and given into his custody. The application was allowed ex parte under order, dated 23-7-1960 but the ex parte order was later set aside on 17-12-1960, 11-2-1961 was in due course fixed for the hearing of the application under S. 25 and when Smt. Kiran Devi did not attend the Court ex parte proceeding was taken and an order in favour of Abdul Wahid was passed.
3. Thereafter a warrant was issued for the arrest of the minors and they were on 29-11-1961 produced in the Court of the District Judge. Aligarh, and were given in the custody of Abdul Wahid. On 3-1-1962 the mother of Smt. Kiran Devi applied for the custody of the minors but the application was summarily rejected and the present restoration application was moved on 5-1-1962 on the ground that Smt. Kiran Devi did not attend the Court of the District Judge on 11-2-1961 as on 5-1-1961 the Civil Judge of Kanpur had in a suit instituted by her and also by her two minor daughters issued an interim injunction order restraining Abdul Wahid from proceeding with the case under S. 25 of the Guardians and Wards Act.
4. The restoration application was made more than 30 days after the passing of the ex parte order. The learned District Judge was of opinion that the prescribed period of limitation for making the restoration application was 30 days and as the application was made beyond time, it was liable to dismissal. The District judge did not enter into the merits and did not record a finding whether there was or was not a sufficient cause for non-appearance in Court on the date the ex parte order was passed.
5. The point for consideration is whether the limitation for making an application under O. IX, R. 13, C.P.C. read with S. 141, C.P.C. to have an ex parte order set aside is governed by Art. 164 or by the residuary clause contained in Art. 181 of the 1st Schedule of the Limitation Act. In case the limitation is governed by Art. 164 it was necessary for the defendant to make the restoration application within 30 days of the ex parte order, otherwise such an application could be made within 3 years in view of the fact that the right to move me application accrued on the date the ex parte order was passed.
6. Article 164 applies to an application by a defendant for an order to set aside a decree passed ex parte. The 30 days' period of limitation prescribed for such an application commences from the date of the decree or where the summons was not duly served, when the applicant had knowledge of the decree. It shall be found that Art. 164 speaks of a decree passed ex parte, and not an ex parte order, even though in other Articles reference has been made to both decrees and orders. When the Legislature used both the words 'decree' and 'order' in the Limitation
Act, it can be assumed that there is difference between a decree and an order and Art. 164 shall apply to only ex parte decrees, or ex parte orders having the force of a decree or order which, in the eye of law, amount to decrees.
7. The word "decree" has not be
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