Limitation Under Article 123 of the Limitation Act When No Proper Notice Was Served
Limitation Period Starts from Date of Knowledge Article 123 prescribes a 30-day limitation for filing applications to set aside ex parte decrees, beginning either from the date of the decree or, if summons/notices were not properly served, from the date the applicant gained knowledge of the decree. This is supported by multiple sources, including 2023 0 Supreme(Raj) 1848, 2024 Supreme(Online)(KER) 43859, 2023 Supreme(Online)(Bom) 14013, 2021 Supreme(Online)(MAD) 46498, 2023 Supreme(Online)(MP) 22166, 2022 0 Supreme(Telangana) 487, and 2023 Supreme(Online)(HP) 14974.
Proper Service and Its Impact on Limitation When service of summons or notices is duly proved, limitation starts from the date of the decree itself. Conversely, if service was not duly effected, the limitation begins from the date the party becomes aware of the decree, as clarified in 2023 0 Supreme(Raj) 1848, 2023 Supreme(Online)(Bom) 14013, and 2023 Supreme(Online)(HP) 14974. The explanation to Article 123 explicitly states that substituted or improper service (e.g., by publication or postal redirection) does not constitute valid service, and limitation runs from knowledge of the decree.
Proof of Knowledge Is Crucial Several cases emphasize that the applicant's knowledge of the decree or judgment is critical in determining the start of limitation. For example, 2021 Supreme(Online)(MAD) 46498 and 2022 0 Supreme(Telangana) 487 highlight that even with publication or substituted service, if the party had actual knowledge, limitation begins from that date. The courts also examine whether due diligence was exercised in discovering the decree.
Consequences of Delayed Filing Courts have consistently held that delays beyond the prescribed limitation period, especially when the applicant had knowledge of the decree, are unjustifiable. For instance, 2023 Supreme(Online)(Bom) 14013 and 2023 0 Supreme(Raj) 1848 note that delays of several years after knowledge are generally not condoned unless exceptional circumstances are demonstrated.
Legal Precedents and Principles The case AIR 1917 PC 6 underscores that limitation does not commence until notice is served. Additionally, 2021 0 Supreme(All) 250 and others cite that even if service was by publication or substituted methods, limitation starts from the date the party learns of the decree, not from the date of service.
Analysis and Conclusion
- The key principle across the sources is that limitation under Article 123 begins from the date the applicant gains knowledge of the decree or judgment, especially when service was not properly effected.
- Proper proof of service is essential; if service is not duly established, the limitation period is triggered only upon actual knowledge of the decree.
- Courts are cautious about condoning delays when knowledge of the decree is established, emphasizing diligent pursuit of information and timely filing of applications.
- Therefore, in cases where no proper notice was served, the limitation period for setting aside an ex parte decree starts from the date the party becomes aware of the decree, not from the date of the decree itself, as supported by multiple judicial decisions and statutory provisions.
References:- 2023 0 Supreme(Raj) 1848- 2024 Supreme(Online)(KER) 43859- 2023 Supreme(Online)(Bom) 14013- 2021 Supreme(Online)(MAD) 46498- 2023 Supreme(Online)(MP) 22166- 2022 0 Supreme(Telangana) 487- 2023 Supreme(Online)(HP) 14974- 2021 0 Supreme(All) 250- AIR 1917 PC 6
