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Review Application No.2 of 1986 and Civil Miscellaneous No.454 of 1986 (in High Court Appeal No.20 of 1985), decided on 30th November, 1986.

---O.IX, R.13 & S.151--Limitation Act (IX of 1908), S.5 & Art.181- Petitioner filing application for setting aside ex parte decree failed to establish commission of fraud--Case being clearly of negligence of petitioner's counsel, contention of petitioner that in view of invocation of S.151, C.P.C. his application for setting aside ex parts decree would be governed under Art.181, Limitation Act, 1908 providing period of three years for filing such application, held, was completely devoid of force--Application being time-barred was rightly rejected in circumstances.

M.M.K.A.Zia for Appellant.

.--This High Court Appeal No.20 of 1986 was dismissed by us in limine by Order, dated 4-2-1986. This review application is directed against the order.

The facts of the case are, that the applicant was a co-defendant in a suit under the Fatal Accidents Act. When the case was proceeding before the learned. Single Judge of this Court, the counsel who was conducting his case expired. Thereafter, the applicant engaged another counsel on 12-10-1980 who examined four witnesses in the case and later told the applicant that the case had been decided in his favour. However, on 13-9-1984 the applicant got a notice from the Court in respect of execution of decree passed in the case. Then it transpired that his counsel had failed to appear on thirteen dates of hearing in the case and had also failed to examine the applicant or any other witness in defence and consequently the suit was decreed against the applicant on 27-11-1982. The applicant then filed an application under Order 9, Rule '3, read with section 151, C.P.C. along-with an application under section 5 of the Limitation Act for condonation of delay, before the learned Single Judge, but the same were dismissed vide order, dated 22-10-1985. The applicant then filed the High Court Appeal and that was dismissed by us in limine vide order, dated 4-2-1986. The reasons stated by us for dismissal of the appeal were as under:-

"We find that the reasons given by the learned Single Judge are not open to any question as 'not only the application under Order 9, Rule 13 read with section 151, C.P.C. was time-barred but the same was not even maintainable under the circumstances of the case. The grounds given by the appellant for condonation of delay were also not sufficient. Furthermore, the appellant has pleaded commission of fraud but no appropriate remedy was sought by him in that respect as well.

In the circumstances, we find no force in this appeal and the same is dismissed in limine."

The only ground urged by the applicant now in this review application before us is, that although the application for setting aside the decree, dated 27-11-1982, had been filed by the applicant under the provisions of Order 9, Rule 13, C.P.C., but through the same application, the applicant had also invoked the jurisdiction of this Court under section 151, C.P.C. and since allegations of fraud had also been levelled in the aforesaid application against the counsel, the application was governed by Article 181 of the Limitation Act, which provides for a period of three years for filing of such applications Therefore, according to the learned counsel, the dismissal of his application by the learned Single Judge and later his appeal by us, on the ground of limitation was on account of mistake which was evident on the face of the record, and the same called for review of our order.

The argument is completely devoid of force. The application under Order 9, Rule 13, C.P.C. was filed for setting aside a decree which was not an ex parts decree and this factual position is not contested by Mr. Zia. In the application before the learned Single Judge, no doubt, the applicant had alleged that he had been misguided by his counsel who had told him that the case had been won by the applicant, the applicant had nevertheless failed to establish commission of any fraud as the case was clearly of negligence on the part of the counsel appearing on behalf of the applicant. Therefore, invoking of this Court's jurisdiction under section 151, C.P.C. by the applicant, would hardly make any difference in the case and the application of the applicant for setting aside the decree had been rightly dismissed by the learned Single Judge. Not only the same was time-barred but it was also not maintainable under the circumstances of the case.

For the aforesaid reasons we do not find any substance in this review application as no error appears in our order, dated 4-2-1986.

H . B. T . / M-249/ K Review declined.

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