Law: Limitation Act (IX of 1908)

Section: 3, 164

Limitation Act (IX of 1908), S. 3 read with Art. 164---Ex parte decree, setting aside of---Limitation---Application for setting aside ex parte decree not mentioning time when applicants carne to know of decree---Counter-affidavit of decree-holder explicitly mentioning that Court bailiffs had gone to attach judgment -debtor's property, which was within knowledge of brother of Chairman of judgment-debtor Society-Decree passed on 7-12-1965, and bailiffs going to effect attachment on 15-12-66-Application for setting aside decree moved on 19-1-1967, held, not filed within limit of 30 days prescribed under Art. 164-Burden of proving want of knowledge of decree being on judgment-debtors and same being not discharged, order for re-opening case after expiry of limitation period, held, clearly passed in defiance of S. 3 and constituted illegal assumption of jurisdiction-Impugned order set aside. Under Article 164 of the Limitation Act an application for setting aside an ex parte decree, on the allegation that the summons was not duly served, had to be made within 30 days of rue knowledge of the decree. There is not a word in the entire application as to when the respondents came to hear about the ex parte decree. On the other hand, the counter -affidavit explicitly mentions that the bailiffs of the Court had gone to attach the property on 15-12-1966 which fact was to the knowledge of brother of Chairman of Society. The burden for proving want of knowledge lay upon the respondents and nothing was done to discharge the same. The order for re opening the case after the limitation had expired was thus clearly in defiance of section 3 of the Limitation Act and constituted illegal assumption of jurisdiction. Date of hearing: 22nd December 1972.                                                                                                                            …