Law: Civil Procedure Code (V of 1908)

Section: O.IX,Rr.6,7,13,96

Law: Specific Relief Act, 1877

Section: 42

(a) Civil Procedure Code (V of 1908)--- ----O. IX, Rr.6, 7, 13 & S.96---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), Arts.164 & 181---Suit for declaration---Ex parte proceeding---Limitation---Scope and application of O.IX, Rr.6 & 7, C.P.C.---Order IX, R.7, C.P.C. provided remedy against order passed under O.IX, R.6, C.P.C.---Limitation Act, 1908 did not provide (for) limitation for filing application under O.IX, R.7, C.P.C.---Order IX, R.7, C.P.C. itself governed period of limitation for filing application for setting aside ex parte proceeding---Application for setting aside ex parte proceeding could only be filed "at or before such hearing" (to which case was adjourned ex parte)---Where ex parte decree had been passed, defendant was precluded from questioning the order passed under O.IX, R.6, C.P.C. before the same court, therefore, defendant could not seek setting aside of ex parte proceeding by application under O.IX, R.13, C.P.C.---Defendant could seek setting aside of ex parte decree either through filing application under O.IX, R.13, C.P.C. or by preferring appeal under S.96, C.P.C.---Under Art.164 of the Limitation Act, 1908 limitation for filing application under O.IX, R.13, C.P.C. was 30 days---Article 164 of the Limitation Act, 1908 was divisible in two parts---First part postulated that the period of limitation was 30 days from the decree while the second part provided that if summons was not duly served then from the date of knowledge the period of thirty days shall be computed---Word "summons" in Art.164 of the Limitation Act, 1908 referred to the first summons issued to defendant after institution of suit---Defendant would be entitled to the benefit of reckoning the limitation of 30 days from his knowledge of decree where he established that summons was not duly served---Where summons was duly served, limitation would run from date of decree---Summon , in the present case, was duly served upon defendant---Defendant filed written statement but disappeared subsequently and filed application for setting aside ex parte decree after four months and twenty days without sufficient cause---Court could not grant free…

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