Rambhau vs Bank of Maharashtra - 1991 Supreme(MP) 733

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : S.C. Pandey
For the Respondent: S.K. Mishra

Headnote:(1) Civil Procedure Code, 1908 – O.9, R.13 – application for setting aside ex – parte decree – hopelessly barred by time – cause shown not tenable – opportunity to lead evidence rightly refused.
       (2) Limitation Act, 1963 – S. 17 – another defendant promising to defend the case but failed to do so – such action cannot be called a fraud – provision not attracted.
       (3) Limitation Act, 1963 – Art. 123 – summons duly served – limitation starts from date of service and not from date of knowledge.
        Short Note
       This is an appeal under order 43, rule l(d) of the Code of Civil Procedure against the order dated 21st July, 89 rejecting the application of the appellant under order 9, rule 13 of the CPC for setting aside ex – parte decree as hopelessly barred by limitation.
       2. Held: The first contention, according to me, of the learned counsel for the appellant has no force. Counsel for the respondent/Bank invited my attention to para 16 of the impugned order where the learned lower Court has considered the request of the appellant for permission to lead evidence on the question of limitation. Learned lower Court in para 16 refused that request for leading evidence on the ground that even on the facts stated by the appellant in his application under order 9, rule 13, CPC and section 5 of the Limitation Act no case for condonation, of delay was made out. The lower Court having held that the application under order 9, rule 13 was prima facie hopelessly barred by time and the cause shown for extending period of limitation could not be accepted, in my opinion committed no error in outright rejecting the application without fixing the case for evidence. I fail to understand the argument of the learned counsel for the appellant that although the trial Court had come to the conclusion that accepting the whole case of sufficient cause set up by the appellant, the application was barred by time, there was necessity for the lower Court to fix the case for recording evidence which was a fruitless exercise.
       2. The second submission of the learned counsel for the appellant was that the delay in the present case was liable to be condoned and the period of limitation should have been reckoned from the date of discovery of the fraud practised by the defendant No.2 on the present appellant (defendant No.3).
       3. Learned counsel submitted that the provisions of section 17 of the Limitation Act could be taken aid of by the appellant to show that he could not have made the application for setting aside the ex – parte decree before the discovery of the fraud played upon him by the respondent No.3 (defendant No. 2). The counsel submitted that having withdrawn from the partnership firm the appellant was content with the assurance of the respondent No.3 that he would take responsibility of conduct of the suit although as discovered by the appellant later the respondent No.3 remained ex – parte and appears to have colluded with the Bank in getting an ex – parte decree passed jointly against the dissolved firm and all its erstwhile partners. The counsel for the appellant submitted that the question of limitation was wrongly decided by the Court below.
       4. The second contention of the learned counsel also does not at all appeal to me. As I have explained above the present appellant was duly noticed at the earliest opportunity in the suit. It cannot be readily believed that he had taken legal advice because no lawyer could have advised him to send written statement by post which is not the procedure of filing pleadings. The assurance alleged to have been given by the defendant No.2 to the, appellant that the defendant No.2 would alone take charge of the case is not something which can be called a fraud so as to attract the provisions of section 17.
       5. Apart from the above, the learned lower Court was right in holding that there is no justification for the delay between 20.4.80, when the appellant is alleged to have derived knowledge of the ex – parte decree, and 30.6.88 on which date the application for setting aside the ex – parte decree was filed. The excuse shown that he wanted to collect certain documents and information is not at all acceptable because no documents were required and the appellant had already been noticed for the suit and had known the nature of claim against tile firm and its partners. Under Article 123 of the Limitation Act the period prescribed for application to set aside the ex – parte decree is 30 days from the date of the decree and it is only in cases where the summons or notices are not served when the period of limitation starts from the knowledge of the decree. In the present case the summons or the notice of the suit was duly served on the appellant who had filed written statement by post. Limitation, therefore, in this case cannot be counted from the date of the knowledge of the decree. In my opinion, the lower Court committed no error in dismissing the application under order 9, rule 13 of the Code of Civil Procedure as prima facie hopelessly barred by time showing no sufficient cause for condonation of delay. Appeal dismissed.