Application for setting aside ex-parte decree : The Supreme Court of India in Mahabir Singh Vs. Subhash & Ors; AIR 2008 SC 276 : 2007 (11) SCR436 : (2008) 1 SCC 358 : 2007 (12 ) SCALE 337 : JT 2007 (13) SC 194 has held that for setting aside an ex-parte decree the defendant required to establish either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit ex- parte.
A bench comprising of Justice S.B. Sinha and Justice Harjit Singh Bedi observed that Article 123 of the Limitation Act, 1963 provides for 30 days time for filing such an application.
Even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing of the ex-parte decree.
the Judgment said.
Application for setting aside ex-parte decree
An ex-parte decree was passed on 19.2.1986, in a suit filed by the appellant, as the respondent-defendant did not appear in the court despite service of summons on him. An application for mutation on the basis thereof was allowed on 7.3.1996. Respondent filed application for setting aside of the ex-parte decree on 7.2.1997.
The respondent in his cross-examination admitted that he had approached the appellant for not giving effect to the decree one and a half year prior to filing of the application. Trial Court dismissed the application. Appeal thereagainst was also dismissed.
High Court allowed the Revision application, on the ground that summons were not properly served and the appellant had not taken recourse to publication in the Newspapers. Hence the present appeal.
While allowing the appeal, the Apex Court held that the approach of the High Court was not correct. There exists a presumption that the official act has been done in ordinary course of business.
Admittedly, an ex-parte decree was passed. Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit ex- parte.
Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex-parte decree. The period of limitation would, thus, be reckoned from that day.
As the application under Order IX Rule 13 CPC was filed one and a half year after the first respondent came to know about passing of the ex-parte decree in the suit, the said application evidently was barred by limitation.
In terms of Section 3 of the Limitation Act, 1963, no court shall have jurisdiction to entertain any suit or application if the same has been filed after expiry of the period of limitation. The High Court could not have ignored the said jurisdictional fact.
Advocates A. Nehra, Gagandeep Sharma and Rameshwar Prasad Goyal appeared for the Appellants and Manjit Singh, B.K. Satija and D. Mahesh Babu for the Respondents.