Supreme Court of India
MAHABIR SINGHversusSUBHASH AND ORS.
- Citation
- 2007 INSC 1078
- Decided
- 12 October 2007
- Bench
- S B SINHA
Holding
The application to set aside the ex‑parte decree is not maintainable as it is barred by the limitation period, and the defendant failed to prove improper service or sufficient cause for his absence.
Summary
Mahabir Singh filed a suit in 1985 and, after serving summons, obtained an ex‑parte decree against Subhash on 19‑Feb‑1986 when the defendant failed to appear. Subhash sought to set aside the decree under Order IX Rule 13 of the CPC on 7‑Feb‑1997, claiming improper service of summons. The trial court and the appellate court dismissed the application, holding the summons were duly served. The High Court, however, allowed a revision, finding the summons not properly served and that the appellant had not resorted to newspaper publication. The Supreme Court held that the presumption of regular service stands, the defendant bore the burden to prove lack of service or sufficient cause for non‑appearance, and that the application was barred by the 30‑day limitation under Article 123 of the Limitation Act, 1963, reckoned from the date he became aware of the decree. Consequently, the appeal was allowed and the High Court’s judgment set aside with costs awarded to the appellant.
Issues considered
- Whether the application under Order IX Rule 13 CPC for setting aside an ex‑parte decree is maintainable when the decree was passed earlier.
- Whether the limitation period prescribed in Article 123 of the Limitation Act, 1963 bars the application.
- Whether the service of summons was proper and who bears the burden of proving otherwise.
Legislation cited
- Code of Civil Procedure, 1908s. Order IX Rule 13, s. Order V Rule 19A
- Limitation Act, 1963s. Article 123, s. Section 3
Subjects
ex‑parte decreelimitation periodservice of summonssetting aside decreeCPC Order IX Rule 13Limitation Act 1963presumption of regular servicecivil appeal
Judgment
-r~
A MAHABIR SINGH
v.
SUBHASH AND ORS.
OCTOBER 12, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]
~
"f
Limitation Act, 1963-Section 3 and Schedule Article 123-
Limitation for filing application for setting aside ex-parte decree-
c Non-appearance ofdefendant despite delivery ofsummons-Ex-parte
decree-Application for setting aside the decree after its execution-
Defendant admitting to the effect that he had knowledge ofthe decree
one and halfyears prior to filing ofapplication-Maintainability of
the application-Held: Application was not maintainable-Defendant
D was unable to establish absence ofservice ofsummons-Application
was also barred by limitation-Code ofCivil Procedure, 1908-0r. 9
r. 13.
An ex-parte decree was passed on 19.2.1986, in a suit filed by the
E 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
F 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
G present appeal.
Allowing the appeal, the Court ).....
HELD: 1. The approach of the High Court was not correct There
436
H
!
MAHABIR SINGH v. SUBHASH 437
exists a presumption that the official act has been done in ordinary course A
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. [Para 6J [440-E, F]
B
2. Article 123 of the Limitation Act, 1963 provides for 30 days time
j 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 C
to when he came to know about the passing ofthe ex-parte decree. 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 halfyear prior to filing of the application, and, thus, he must be
deemed to have knowledge about passing of the said ex-parte decree. D
The period oflimitation 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-pa rte
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 E
jurisdiction to entertain any suit or application ifthe same has been filed
after expiry of the period oflimitation. The High Court could not have
ignored the said jurisdictional fact.
[Paras 7, 8 and 9] [440-F; 441-C, D, E, F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4881 of F
_y 2007.
From the Judgment and final Order dated 14.02.2005 of the High
Court of Punjab and Haryana at Chandigarh in Civil Revision Petition No.
5999 of 2003.
A. Nehra, Gagandeep Sharma and Rameshwar Prasad Goyal for G
the Appellants.
Manjit Singh, B.K. Satija and D. Mahesh Babu for the Respondents.
The Judgment of the Court was delivered by
H
438 SUPREME COURT REPORTS [2007] 11 S.C.R.
{'-
A S.B. SINHA, J. 1. Leave granted.
2. Appellant is before us being aggrieved by and dissatisfied with a
judgment and order dated 14.2.2005 passed by the High Court of Punjab
and Haryana in Civil Revision Petition No.5999 of2003 whereby and
whereunder the Revision Application filed by the first respondent herein
B was allowed.
3. Appellant filed a civil suit on or about 6.4.1985. Summons of the
suit were served upon the first respondent. He did not appear. An ex
parte decree was passed against him on 19.2.1986. An application for
C mutation on the basis thereof was filed which was allowed on 07.03.1996.
Allegedly, the first respondent having come to know about passing of the
said ex parte decree on 03.02.1997, filed an application on 07.02.1997
for setting aside the same, in terms of Order IX Rule 13 of the Code of
Civil Procedure. The learned Trial Judge, by reason of an order dated
D 28.07.2000, dismissed the said application, inter alia, holding that
summons had been duly served upon the first respondent. It was
furthermore noticed that the first respondent herein, while examining himself
in the said proceedings under Order IX Rule 13 of the Code of Civil
Procedure in his cross-examination, admitted that one and a half year prior
E to filing of the said application, he and his brother approached Dharam
Singh for getting the judgment and decree set aside but he negated their
plea.
4. An appeal was preferred thereagainst. The Appellate Court also
F affirmed the said finding holding :
"12.In this case, Ex.Al to Ex.A3 are the record of ownership "\'.-
which is not disputed. Ex. R3 I the copy of summon which clearly
shows that Subhash refused to accept the service of summons. It
also shows that the copy of summons was also affixed on his
G house. This report is duly attested by clerk of Court as per Ex.R4/
B and affidavit has also been given by Jogi Ram process server
and affidavit has also been given by Jogi Ramprocess server and ~
Subhash was to appear in court on 7.5.85 but he did not appear
in the court and then the coUit has ordered for substituted service.
H
j
MAHABIR SINGH v. SUBHASH [SINHA, J.] 439
But after munadi effected in the village also, the defendant failed A
to appear in court as per Ex.RI, Ex.R2 is the report of Ram
Mehar, process server who got effected the munadi. No doubt
Nand Lal Chjow'tcidar has denied his thumb impression but it carried
no help to the defendant in view of the statement of RW-1 Ram
Mehar, process server. There is no report on the file that the B
summons does not bear the thumb impression of Nand Lal
}
Chowkidar. Statement of PW2 Nand Lal is self contradictory as
he has pleaded that he has no knowledge that the process server
has affixed the copy of summons on the house of Subhas. He has
also stated that he has no knowledge that about ten years back c
court officials brought this summon to him. He has shown his '
ignorance about the pendency of the case. He has also shown his
ignorance about the munadi effected by him twelve years back.
He has even not been able to tell that he was shown as a witness.
There is no reason to disbelieve the statement of Ram Mehar,, D
process server with regard to the report of refusal of Subhas,
appellant RW-2 Dilbag Rai Jain has also proved that the summon
were duly executed upon the defendant who refused to accept the
same. So there is no illegality or irregularity in thie service of
summons. Rather the learned trial court has given doubl~ E
opportunity not only after the refusal by the defendant to appear
in the court but as well as by getting the defendant served througq
munadi. Since the defendant intentionally did not appear in the court
so the learned trial court has rightly passed the ex parte judgment
and decree dated 19.2.86. F
13. Admittedly the decree under challenge was passed in the year
1986 while the present application for setting aside the ex parte
judgment and decree was filed on 6.2.97 i.e. almost after eleven
years of passing of the impugned decree. So far as the delay iµ
filing the application is concerned, no doubt the defendant has trie~ G
to prove that he came to know recently about the decision of t~e
,-1...
case but this version is not tanable when PWl Ram Mehar, proce~
served has categorically stated that about 1-1/2 years back he
alongwith his brother, went to Dharam Singh and Dharam Singh
H
440 SUPREME COURT REPORTS [2007] 11 S.C.R.
A told them that they have got no concern with the plot in question
and that he would not set aside the decree. He has also stated
that he has told his relatives that 10/11 days prior filing this
application. This clearly shows that the defendant was well aware
of the decree in question and he can file the present application
B within one month of the passing of the decree. He is to explain
each days delay. So it can be safely eld that the application is time
barred. Thus, the findings of the learned trial court recorded under
issue No.1 and 2 are hereby affirmed and these issues are decided
against the appellant-defendant a11d in favour of the respondents-
c plaintiffs.
5. The Revision Application filed thereagainst by the first respondent
herein was allowed by the High Court. The High Court in the impugned
judgment opined that the appellant had played fraud on the Court as neither
D the summons were properly served, nor the publication was made in the
newspapers. Order V Rule 19A of the Code of Civil Procedure, which,
according to the High Court, could have been taken recourse to, had also
not been resorted to. Adverse comments were also made by the High
Court in regard to the application for mutation filed by the appellant only
E after 10 years, i.e., in the year 1996.
6. The approach of the High Court, in our opinion, 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
F summons was served on him or he had sufficient cause for remaining
absent on the _date fixed for hearing the suit ex parte. "1--
7. Article 123 of the Limitation Act, 1963 provides for 30 days time
for filing such an application. The said provision reads thus :
G
MAHABIR SINGH v. SUBHASH [SINHA, J.] 441
Description of application Period of Time from which A
Limitation period begins to run
123. To set aside a decree Thirty days The date of decree or
passed ex parte or to where the summons
re-hear an appeal decreed or notice was not duly
or heard ex parte. Served, when the B
applicant had
Explanation:- For the knowledge of the
Purpose of this article, decree.
Substituted service under
Rule 20 of Order V of the c
Code of Civil Procedure,
1908 (5 of 1908) shall not
Be deemed to be due service.
8. Thus, even assuming for the sake of argument that no proper step
was taken by the appellant herein for service of summons upon the D
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. 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 E
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 of the Code of Civil Procedure was filed one and a
half year after the first respondent came to know about passing of the ex F
parte decree in the suit, the said application evidently was barred by
limitation
9. In tem1s of Section 3 of the Limitation Act, 1963, no comi 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 G
have ignored the said jurisdictional fact.
10. For the reasons aforementioned, the impugned judgment cannot
be sustained. It is set aside accordingly. The appeal is allowed with costs.
The counsel's fee assessed at Rs. I0,000/- (Rupees ten thousand only).
K.K.T. Appeal allowed. H
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