1996SCMR596 (PLP)

O.IX, R. 13

Limitation Act. (IX of 1908), Art. 164

Constitution of Pakistan (1973), Art. 185(3)

Setting aside ex parte decree

Ex pane decree was passed on 21-6-1977

Petitioners claimed that they were not served and that ex parte decree was granted at their back

Petitioners allegedly came to know of ex parte decree on 25-8-1980 and on 29-9-1980, they made application for setting aside ex parte decree

Petitioners, thus, as per their own assertion filed application for setting aside ex parte decree after 34 days of acquiring knowledge thereof

Application for setting aside ex parte decree in terms of Art. 164, Limitation Act, 1908, should have been made within thirty days of the knowledge of ex parte decree but petitioners were late in so doing

View taken by High Court was that four days' delay had not been adequately explained-- Provisions for setting aside ex parte decree do not oblige a person making application for setting aside ex parte decree to file certified copy of such decree alongwith his application

Even if it be assumed that petitioners acquired knowledge of ex parte decree on 25-8-1980, there was no good explanation for their failure to file application for setting aside ex parte decree after four days of running out of period of limitation, viz. thirty days following acquisition of knowledge of ex parte decree

High Court was, thus, correct in holding that four days' delay had not been adequately explained

Leave to appeal was refused in circumstances. Zainul Abedin, Advocate Supreme Court assisted by Sh. Salahuddin Advocate-on-Record (absent) for Petitioner: Date of hearing: 28th January, 1996. MUHAMMAD ILYAS

This petition has arisen out of a suit brought by the respondent, Mukhtar Ahmad against the petitioners, Muhammad Saleem and others. The suit was decreed ex parte by a Civil Judge. The petitioners made an application for setting aside the ex parte decree but the application was dismissed on the ground that it was time-barred and that the petitioners had not been able to show sufficient cause for *ir failure to appear before the learned trial Court to contest the suit. Order of the learned Civil Judge in this regard was challenged by the petitioners by filing appeal before an Additional District Judge. View taken by the learned Additional District Judge was that there were sufficient reasons for making the application but he upheld the finding of the learned trial Court on the question of limitation. Accordingly, the appeal was dismissed. The petitioners, therefore, submitted revision petition before the Lahore High Court, Multan Bench, but it was dismissed by a Single Judge thereof. Hence this petition for leave to appeal against the order of the learned Judge in Chamber.

2. The ex parte decree was passed on 21-6-1977. According to the petitioners, they were not served in the suit and that the ex parte decree was granted at their back. Allegedly, the petitioners came to know of the ex parte decree on 25-8-1980. On 29-9-1980, they made application for setting aside the ex parte decree. This means that they filed application for setting aside the ex parte decree after 34 days of acquiring knowledge thereof. In view of Article 164 of the First Schedule to the Limitation Act, 1908, the application should have been made within thirty days of the knowledge of the ex parte decree but the petitioners were late by four days in so doing. View taken by the learned Single Judge of the High Court was that this four days' delay had not been adequately explained. He, therefore, found nothing wrong with the order of the learned Additional District Judge and dismissed the revision petition.

3. It was argued by learned counsel for the petitioners that after coming to know of the ex parte decree, the petitioners made application for obtaining copy of the said decree which was supplied to them on 28-9-1980 and then on the following day, they filed application for setting aside the ex parte decree. Thus, according to the learned counsel, after excluding the period spent by them for obtaining the copy, their application for setting aside the ex parte decree was within time.

4. Provisions relating to the setting aside of an ex parte decree find mention in rule 13 of Order IX of the Code ohCivil Procedure. These provision do not oblige a person making application for setting aside the ex pane decree to file certified copy of such decree alongwith his application. Learned counsel for the petitioners could not point out any other provision of law or rule whereunder the said application could not be made without appending thereto certified copy of the ex pane decree. Thus, even if it is assumed that the petitioners acquired knowledge of the ex parte decree on 25-8-1980, there is no good explanation for their failure to file application for setting the ex parte decree after four days of the running out of the period of limitation, namely, 30 days following acquisition of knowledge of the ex parte decree.

5. In the circumstances, no legitimate exception can be taken to the order of the learned Judge in Chamber. Leave to appeal against his order is, therefore, refused and the petition in hand dismissed. A.A./M-3210/S Leave refused.