P L D 1980 Lahore 181 (PLP)

This revision petition has arisen out of a civil suit brought by respondent No. 1, Ahmad Yar Khan against the petitioner, Col. Ata-ur-Rehman and respondents Nos. 2 to 4, Province of the Punjab and two others. In that suit, ex parte decree was passed against the defendants on 17th April, 1974. Thereafter, only two of the defendants, namely; Col. Ata-ur-Rehman and Major-General Wajahat Hussain made applications for setting aside the ex parte decree, on the 6th June, 1974 and 7th June, 1974, respectively. The applications were resisted by respondent No. 1 (plaintiff), hereinafter referred to as the respondent, whereupon the following issues were framed by the trial Court :- (1) Whether the applications are within time? O. P. P. (2) Whether there are sufficient grounds to set aside the impugned order? O. P. P. (3) Relief. The trial Court, by its order, dated the 24th May, 1976, answered the first issue in the negative and the second one in the affirmative. Resultantly, the applications were dismissed. Feeling aggrieved by the order of the learned trial Court Col. Ata-ur-Rehman went in appeal before District Judge but without success. Hence this revision petition by him.

2. The reason given by the two Courts below for deciding the issue of limitation against the petitioner was that since lie had put in appearance before the trial Court, through his counsel, after his service in the suit, he ought to have made the application for setting aside ex parse decree within thirty days of the passing of the same but as he had failed 'to do so, the application was time barred. This view was expressed in the light of the provisions of Article 164 of the Limitation Act, 1908, which prescribes a period of thirty days for making application for setting aside an ex paste decree.

3. Learned counsel for the petitioner contended that the application of the petitioner for setting aside the ex paste decree was not under Order IX, rule 13 of the Code of Civil Procedure hereinafter referred to as the Code, but under section 151 of the Code and, therefore, Article 164 of the Limitation Act, 1908, would not be applicable to the - present case. According to him, the period of the limitation .prescribed for application like the one involved herein is three years by virtue of the residuary provisions contained in Article 181 of the said Act. Explaining as to how the petitioner's application was an application under section 151 and not under rule 13 of Order IX, learned counsel for the petitioner submitted that the petitioner was not "prevented by any sufficient cause" from appearing before the trial Court and, therefore, the provisions of rule 13 were not attracted to his case.

4. Elaborating his ingenious argument, learned counsel for the petitioner referred to the contents of the application for setting aside the ex paste decree. In that application it was stated by the -petitioner that he had told his counsel not to pursue another case but the counsel thought that the petitioner required him not to defend the suit giving rise to the instant petition and that was the reason that his counsel did not attend the trial Court on the date when the ex paste decree was passed. Since, according to the learned counsel for the petitioner, the explanation offered by the petitioner for his failure to appear before the trial Court was not sufficient cause within the meaning of rule 13 of Order IX, he wanted the trial Court to set aside the ex parte decree in exercise of inherent powers vesting in it under section 151 of the Code. He cited Abdullahbhai Ebrahimji v. Isabhai Najamuddin and others (1) to support his contention.

5. The difficulty now faced by petitioner is that of limitation. The case of Abdullahbhai Ebrahimji cited b5 the learned counsel is not on the point of limitation. In that case, the defendants were present in Court when their case was called-on but their counsel were not present by reason of their being engaged in other Courts. It was held that the mere fact that the counsel were busy before other Courts was not a sufficient cause -.,thin the meaning of Order IX, rule 13, but there was an inherent power vested in Court, under section 151, to prevent un-justice being done and the Court should have under such circumstances set aside the ex parte decree on payment of costs. In view of the case of Abdullahbhai Ebrahimjd, therefore, the petitioner can fall back on the provisions of section 151, with a view to getting over the difficulty in satisfying the requirements of rule 13 of Order IX but I am afraid, section 1511 cannot help him in avoiding application of Article 164 of the Limitation Act to his case because the significance of section 151 is only in, respect of -the procedural provisions embodied in the Code and it has no besting on the law of limitation contained in a different enactment, namely, the Limitation Act. Article 164 of the said Act applies to every application for setting aside an ex parte decree regardless of the fact that the reasons given for having the ex paste deer a set aside constitute sufficient cause as contemplated by rule 13 of Order IXe or some other reasons are furnished to pursuade the Court toy set aside the ex parte decree in exercise of its inherent powers under section

151. If the intention of the framers of the said Act had been to confine the application of Article 164 to such applications only as are made for setting aside an ex parte order under Order IX, rule 13, they would have mentioned the said provisions in the first column of Article 164 but this was not done. It would, therefore, follow that they intended to apply Article 164 to all sorts of applications for setting aside the ex paste decree.

6. The Limitation Act deals with different type of proceedings such as suits, appeals, applications and since the proceeding involved in the present case, namely, application for setting aside the ex paste decree is specifically dealt with in Article 164 thereof, the residuary provisions of Article 181 cannot be made use of in regard to that application. (1) A I R 1932 Bom. 634

7. In this view of the matter, no exception can be taken to the unanimous verdict of the two Courts below that the petitioner's application for setting aside the ex parte decree was barred by time.

8. Resultantly, the petition is dismissed in limine. ??????? M. A x. Petition dismissed.