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Civil Revision No. 13 dated 19th July 1952, decided on 12th February 1953, against the order of District Judge, Rahimyar khan, dated the 10th June 1952.

O. IX, r. 13‑Defendant absenting himself on date fixed for framing issues‑Ex parte decree‑Application for setting aside decree, made beyond 30 days from date of decree but within such period counted from the de fendants getting knowledge of decree‑Time‑barred‑Limitation Act (IX of 1908), Sch. I, Art. 164.

The respondent was present in the Court on 10th and 26th May 1951 and had filed his written statement upon which 28th May was fixed for framing issues, but he failed to appear on the adjourned date and the suit was decreed ex parte against him on June 27th 1951. The application made by him to set aside the ex parte decree was clearly beyond the statutory period of thirty days from the date of the decree and had been rightly dismissed by the trial Court. If the defendant was under any misconception about the mis-adjourned hearing i.e., 28th May it was his duty to find out the exact date of hearing and to keep in touch with the progress of the case, as he was fully cognizant of the institution of the suit against him. However, despite the notice of the suit, he appeared to have been intentionally negligent in ascertaining the dates of hearing and presented his application after the expiry of 30 days prescribed by Article 164, Limitation Act and therefore his case could not fall under part second of the Article.

Mian Kamal Din v. Malik Muhammad Bashir P L D 1952 Lah. 456 and A I R 1932 Lah. 539 ref.

Mustafa Khan for Petitioner.

.‑This is a petition for revision of the order of District Judge, Rahimyarkhan, setting aside an exparte decree passed by the Sub‑Judge Ahmadpur East in a suit for dissolution of marriage filed by the petitioner in that Court. It appears from the record that the respondent was present in the trial Court on 26th May 195L, and the case was adjourned to 28th May 1951, for framing of issues on that date, but the respondent absented himself on that day upon which ex parte proceedings were taken against him and after recording the evidence of the petitioner an ex parte decree was passed in her favour on 27th June 1951. The respondent made an appli cation to the Court for setting aside the decree, but it was dismissed by the trial Court as being time‑barred under Article 164, Limitation Act. On appeal the District judge of Rahimyarkhan held that the absence of the respondent on 28th May 1950, was not intentional and that he had made an application to the Court for setting aside ex parte decree immediately after he got the knowledge of the decree against him. He therefore accepted his appeal and set aside the exparte decree. From this order the petitioner has come up to this Court in revision through her counsel Mr. Mustafa Khan. The respon dent has not put in appearance in spite of substituted service on him under Order 5, rule 20, C. P. C.

The main contention of the learned counsel for the peti tioner is that the respondent having actually attended the Court on the first hearing, the second part of Article 164 is not applicable, as it comes into operation only where applicant pleads that he has not been duly served with summons and had knowledge of the decree only within thirty days from the day at which he had made the application. I quite agree with the contention of the learned counsel that the order of the lower appellate Court is contrary to law and is not sustainable. It is clear from the record that the respondent was present in the Court on 10th and 26th May 1951 and had filed his written statement upon which 28th May was fixed for framing issues, but he failed to appear on the adjourned date and the suit was decreed exparte against him. The application made by him to set aside the ex parte decree is clearly beyond the statutory period of thirty days from the date of the decree and has been rightly dismissed by the trial Court. If the defendant was under any misconception about the adjourned hearing i.e., 28th May, it was his duty to find out the exact date of hearing and to keep in touch with the progress of the case, as he was fully cognizant of the institution of the suit against him‑1 However, despite the notice of the suit, he appears to have been intentionally negligent in ascertaining the dates of hearing and presented his application after the expiry of 30 days prescribed by Article 164, Limitation Act and therefore his case could not fall under part second of the Article. (See Mian Kamal Din v. Malik Muhammad Bashir (P L D 1952 Lah. 456 and A I R 1932 Lah. 539.). I therefore accept this petition and set aside the order of the District Judge as wrong and without jurisdiction. I make no order as to costs. Petitioner to be informed accordingly.

A. H. Petition accepted.

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