Case Note & Summary
The dispute arose from Title Suit No. 61/90 filed in the court of Munsiff No.1, District Karimganj, Assam, where Gauhati University was impleaded as a defendant. The suit was posted for appearance on May 29, 1990, but the summons was served on the University on May 28, 1990, leaving only one day before the hearing. The University sent a letter seeking adjournment, and the court adjourned the case to July 19, 1990. However, the adjourned date was not intimated to the University. Consequently, the University did not enter appearance, and the suit was decided ex parte. The University filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 to set aside the ex parte decree. The Trial Court dismissed the application as barred by limitation under Article 123 of the Schedule to the Limitation Act, 1963, holding that limitation ran from the date of the decree. The High Court confirmed that order. The University then appealed to the Supreme Court by special leave. The Supreme Court examined the provisions of Order 5 Rule 6 and Order 9 Rule 6 CPC. Order 5 Rule 6 requires that the day for appearance be fixed to allow the defendant sufficient time to appear and answer. Order 9 Rule 6(c) provides that if summons is served but not in sufficient time, the court shall postpone the hearing and direct notice of the future date to be given to the defendant. The Court noted that in this case, summons was served on May 28, 1990 for appearance on May 29, 1990, which was clearly insufficient. When the court adjourned the suit to July 19, 1990, it failed to communicate that date to the appellant as required under Order 9 Rule 6(c). Therefore, the summons was not duly served. Under Article 123 of the Limitation Act, limitation for setting aside an ex parte decree runs from the date of the decree only if the summons was duly served; otherwise, it runs from the date when the applicant had knowledge of the decree. The Court held that since the summons was not duly served, limitation began to run from the date the appellant had knowledge of the ex parte decree, and the application was filed within 30 days from that date. The courts below had not considered this aspect. Accordingly, the Supreme Court allowed the appeal, set aside the ex parte decree, and remitted the matter to the Trial Court. The appellant was directed to appear before the Trial Court on December 4, 1995 for further proceedings, and no costs were awarded.
Headnote
A) Limitation Act - Setting Aside Ex Parte Decree - Article 123 of Schedule to Limitation Act, 1963 - Where summons not duly served, limitation runs from knowledge of decree; application filed within 30 days from knowledge is not barred - The appellant filed an application under Order 9 Rule 13 CPC to set aside an ex parte decree. The trial court held it barred by limitation under Article 123 because it computed limitation from the date of decree. The Supreme Court held that limitation under Article 123 begins from the date of decree only if summons was duly served. As summons was not duly served, limitation began when the appellant had knowledge of the ex parte decree, and the application was filed within 30 days from that date. Held that the application was not barred by limitation. (Paras 1-2) B) Civil Procedure - Service of Summons - Order 5 Rule 6 and Order 9 Rule 6 CPC - Service one day before hearing not sufficient time; adjournment date must be communicated; otherwise summons not duly served - Summons was served on the appellant on May 28, 1990 for appearance on May 29, 1990, which gave insufficient time to appear. The court adjourned the suit to July 19, 1990 but did not communicate the adjourned date to the appellant as required under Order 9 Rule 6(c) CPC. The Supreme Court held that such service did not constitute due service. The ex parte decree was therefore liable to be set aside. Held that the appeal is allowed and the ex parte decree is set aside; matter remitted to trial court. (Paras 1-2)
Issue of Consideration
Whether the application under Order 9 Rule 13 CPC filed by the appellant was barred by limitation under Article 123 of the Limitation Act, 1963, considering whether summons was duly served.
Final Decision
Appeal allowed; ex parte decree set aside; matter remitted to Trial Court; appellant to appear on December 4, 1995; no costs.
Law Points
- Limitation for setting aside ex parte decree under Article 123 begins from date of decree only if summons duly served
- service on day before hearing is not due service
- adjourned date must be communicated to defendant under Order 9 Rule 6(c) CPC
- if not
- limitation runs from knowledge of decree
