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Civil Rule No. 451 of 1960, decided on 11th August 1960.

---Defendant making appearance in suit in response to summons but failing to appear subsequently‑Application for setting aside ex pare decree to be filled within 30 days of date of decree and not from date of knowledge of such decree‑Limitation Act (IX of 1908), Art. 164.

Where in a suit, summons has been duly served on the defendant and he makes his appearance in response to it but subsequently fails to do so and an ex‑paste decree against him is passed by the Court, his application under Order IX, rule 13 of the Civil Procedure Code, 1908 must be filed within 30 days from the date of the ex paste decree and not from the date of the knowledge of such decree.

‑ Summons'‑Refers to first summons.

The word summons used in Article 164 of the Limitation Act, 1908 refers to the first summons issued to the defendant after the institution of the suit.

Mian Kamal Din v. Malik Muhammad Bashir and others P L D 1952 Lab. 456 rel.

Nizamuddin Haider for Petitioners.

B. C. Pandey for the Opposite‑Parties Nos. 1 and 3.

This Rule arises out of an application under Order IX, rule 13 of the Code of Civil Procedure filed by the opposite- parties Nos. 1‑3 which has been allowed by the learned Munsif.

2. The ex parte decree to which the proceeding related was passed on 17‑11‑58 and the said application under Order IX rule 13, C. P. C. was filed on 6‑1‑59. The other fact necessary to be mentioned for the purpose of the present decision is that the summons was duly served upon the defendants and they actually entered appearance in the suit but failed to appear subsequently on the date on which the disputed ex paste decree was passed. The explanation offered by them was that the clerk of their learned lawyer failed to inform them about the aforesaid date as had been previously arranged and because of that they could not appear on the relevant date.

3. Mr. Nizamuddin Haider appearing on behalf of the petitioners (plaintiffs) has impeached the order of the learned Munsif mainly on the question of limitation and has contended that since the defendants had been duly summoned and had actually entered appearance, the period of limitation under the relevant Article of the Limitation Act, namely, Article 164, is 30 days from the date of the decree and not from the date of knowledge which has bearing only where the first summons has not been served. In support of his contention he has relied upon the case of Mian Kamal Din v. Malik Muhammad Bashir and others (P L D 1952 Lah. 456), where a Division Bench of the Lahore High Court in an appeal under the Letters Patent has held that where the first summons has been served upon the defendant, his application for restoration under Order IX, rule 13 of the Code of Civil Procedure filed after the expiry of 30 days from the date of the ex parte decree, is time‑barred. The learned Judges in that case have further held : "The word summons' used in Article 164, Limitation Act refers to the first summons issued to the defendants after the institution of the suit." It is thus clear that the learned Munsif was wrong in holding that the said application under Order IX, rule 13 of the Code by the defendants‑opposite parties Nos. 1‑3, was within time. Hence the order complained of cannot be sustained.

4. In the result, the rule is made absolute, the order of the learned Munsif is set aside and the ex parte decree in question is restored to file.

I however, make no order as to costs.

The learned advocate for the opposite‑parties is permitted to withdraw the sum of Rs. 75 already deposited by his clients on 30‑1‑60, as prayed for.

K. B. A.

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