Law: Civil Procedure Code (V of 1908)

Section: 115 & 151

Civil Procedure Code (V of 1908), Ss. 115 & 151-Scope of S. 115 limited -Party free to move Court under S. 115 does not preclude itself from seeking justice under S. 151-Application under S. ISI could not be thrown away in limine on ground of maintainability. JUDGMENT   This Rule was obtained against an order of the learned Munsiff dismissing an application purported to have been filed under Order XLV II, rule 1 read with section 151 of the Code of Civil Procedure for setting aside an ex parte order dated 17-12-60, passed in Miscellaneous Case No. 149 of 1960 under Order IX, rule 13, Civil Procedure Code arising out of Title Suit No. 52 of 1957.   In fact the title suit referred to above was decreed on contest as against defendantNo. 1 and ex parte against other defendants. Defendant No. 3 against whom the title suit was decreed ex parte made an application for setting aside the ex parte decree under Order IX, rule 13, Civil Procedure Code and this application was heard and allowed ex parte on 17-12-60. The grievance of the present petitioners who were plaintiffs in the original title suit referred to above was they got no notice of the said Miscellaneous Case No. 149 of 1960, inasmuch as the pro cesses in relation thereto have been suppressed fraudulently. Further contention of the petitioner was that the decree in the title suit was passed as early as 3-1-59 whereas the application under Order IX, rule 13, Civil Procedure Code was made on 23-8-60. There was nothing to show that the applicant in that miscellaneous case was entitled to get the benefit of section 18 of the Limitation Act.   It appears from the relevant part of the order dated 17-12-60 as quoted in the application before this Court that the question of limitation was not at all considered by the learned Munsiff. Be that as it may, the learned Munsiff did not also go into the question as to whether any notice of the said Miscellaneous Case No. 149 of 1960 was served on the plaintiffs-petitioners as alleged. He disposed of the matter in Miscellaneous Case No. 182 of 1960 simply on the ground of maintainability.   Both the learned Advocates have been heard on the question of…