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‑‑‑S. 12(2)‑‑Ex parte decree, setting aside of‑‑Contention of petitioner in his application under S. 12(2) that he had no knowledge either of suit against him or of passing ex parte decree against him, remained unchallenged as respondent neither filed counter‑affidavit to rebut contention of petitioner nor produced evidence to prove that disputed thumb‑impression or signature on summons alleged to have been served on petitioner was that of petitioner‑‑Bailiff was not examined as witness by respondent‑‑Finding of fact arrived at by Trial Court that petitioner had no knowledge of suit or of passing of ex parte decree against him, held, could not be disturbed.

‑‑‑S. 12(2)‑‑Limitation Act (IX of 1908), Art. 164‑‑Ex parte decree, setting aside of‑‑Limitation for‑‑Period for filing application under S. 1 (2), C.P.C. having not been prescribed in the Code, Limitation for Piling such application, held, would be governed by Art. 164, Limitation Act, 1908‑‑Petitioner claiming that he obtained knowledge of ex parte decree against him for first time on service of notice of execution proceedings against him‑‑Application filed by petitioner within 30 days from date of knowledge of decree, held, could not be considered time‑barred‑‑Finding of Court below that period of limitation for filing application for setting aside ex parte decree was 90 days was illegal on face of it and could not be sustained.

1962 P L D (W.P.) Kar. 8 ref.

Nizamuddin Baloch for Applicant. Khawand Bux Mahar (absent) for Respondent No. 1.

Date of hearing: 1st September, 1986.

SYED ABDUR REHMAN, J.‑‑This constitution petition arises under the following circumstances:‑‑

Respondent Sain Bukhsh had filed suit No. 9 of 1984 against the petitioner in the Court of Civil Judge, Thari Mirwah on 28‑1‑1984 for recovery of gold ornaments worth Rs.8,000 alleged to have been entrusted by him to the petitioner in March, 1983. Summons were issued against the petitioner and were shown by the bailiff falsely to have been served upon him and a bogus thumb‑impression was affixed. Consequently, the learned Civil Judge held the service good and then ordered on 23‑2‑1984 that the suit should proceed ex parte. He then passed an ex parte decree against the petitioner on 31‑3‑1984. The respondent thereafter, filed an application for execution of decree against the petitioner. On receiving the notice of this execution application the petitioner came to know for the first time that such a suit had been filed against him and that it was decreed ex parte. Consequently, he made an application under S. 12(2) of C.P.C. for setting aside the said decree.

The learned Civil Judge after hearing both the parties set aside the decree and allowed the petitioner to file written statement. The respondent being aggrieved of that order preferred civil revision before the District Judge, Khairpur, who after hearing the parties came to the conclusion that the application for setting aside the decree was time‑barred and, therefore, set aside the order of the Civil Judge. Since no appeal or revision can lie against the impugned order which was passed by the District Judge in exercise of revisional jurisdiction, the petitioner had no other alternative but to file this constitution petition.

We have heard Mr. Nizamuddin Baloch advocate for the petitioner at some length. Respondent Sain Bukhsh and his advocate Mr. Khawand Bux Mahar have chosen to remain absent.

Admittedly the suit had proceeded ex parte and neither the defendant nor his counsel or any other authorised agent appeared in the trial Court on any date of hearing. All that has been alleged is that the summons sent to the petitioner were shown as served by the bailiff who claimed to have obtained his thumb‑impression thereon in token of his having accepted the summons. The petitioner's counsel who had filed the application for setting aside the ex parte decree under section 12(2) of C.P.C. had filed an affidavit of the petitioner alongwith that application wherein he clearly averred in para. 3 that no service has ever been effected upon him in the above suit and if any signature or thumb‑impression appears on the summons that is manipulated, fraudulent and bogus. No counter‑affidavit was filed by the respondent nor any evidence has been produced to show that the thumb‑impression or signature on the summons was that of the petitioner A Even the bailiff was not examined as a witness by the respondent. The learned Civil Judge after referring to the contention of the petitioner, observed that the defendant had no knowledge of the suit, and even the summons of the suit were not served upon the defendant.

In view of what has been stated above, it is quite clear that it was proved to the satisfaction of the learned Civil Judge that the petitioner had no knowledge of the suit or of passing of ex parte decree. This finding of fact was neither disbelieved by the District Judge nor could it be disturbed in revisional jurisdiction.

In this view of the matter, the finding of the learned District Judge that the application for setting aside the ex parte decree was time‑barred cannot be upheld. According to Article 164 of Limitation Act an application for an order to set aside a decree passed ex parte has to be filed within 30 days of the date of decree or were the summons were not duly served, when the applicant has knowledge of B the decree. It would, therefore, appear that the application of the petitioner to set aside the ex parte decree was within time as he claims to have obtained the knowledge of the filing of the suit as well as the ex parte decree for the first time on the service of notice of execution application. Hence his application cannot be considered as time‑barred. The finding of the learned District Judge that the period of limitation was 90 days from the date of decree and that the petitioner had not filed application for setting aside the ex parte decree within that period of 90 days is on the face of it illegal and cannot be sustained.

Subsection (2) was added in section 12, C.P.C by section 2 of ordinance X of 1980. It reads as under:‑‑

"(2) where a person challenges the validity of judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."

Nowhere in this section or any other section of Ordinance X of 1980, or in any other law period of 90 days from the date of ex parte decree has been prescribed as the period of limitation for making an application under section 12(2) of C . P. C . , hence we will have to fall back upon Article 164 of Limitation Act which relates to application by the defendant for an order to set aside a decree passed ex parte.

We also could not find any other provision in the Limitation Act except Article 181, which is a residuary‑article, which can only apply '.o an application if no other article applies. This article on the contrary prescribes a period of 3 years from the date when the right to apply accrues, as period of Limitation.

It will be observed that Article 164 of Limitation Act makes no reference to the Civil Procedure Code or to any other Act, and the wording of Article appears to make it unnecessary, for the purpose of bringing its provisions into operation to determine whether an application by a defendant for an order to set aside an ex parte decree is made in virtue of Order IX, Rule 13, C.P.C. or apart from it. Similar view was taken by G.B. Canstantine J. (as he then was) in United Grain and Fodder Agencies case P L D 1962 (W.P.) Kar. 8.

Hence this application, which was made by the defendant for an order to set aside the decree passed ex parte under section 12(2) of C.P.C. will be governed by Article 164 of the Limitation Act and its period of limitation will be 30 days, which will run from the date of the decree or where the summons has not been served, as is in this case, it will run from the date when the applicant has knowledge of the decree. The true copy of execution application produced by the petitioner, shows that the notice of this application was ordered to be issued on 7‑8‑1984. It must have been served on a day subsequent to that date. The true copy of the application to set aside ex parte decree produced by the petitioner, shows that it was presented on 23‑8‑1984 i.e. within 15 days of the issuance of the said notice. Hence we have no doubt in our mind that the application was within the period of limitation prescribed by the law i.e. Art. 164 of Limitation Act.

These are the reasons for our short order, dated 1‑9‑1986 by which we allowed the constitution petition filed by the petitioner and set aside the impugned order and directed that the learned Civil Judge shall proceed with the suit and dispose it of according to law.

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