ORDER
S.C. Misra, J.
1. This petition by the plaintiff arises out of a suit for declaration of title and recovery of possession over 7.97 acres of land, comprised in Khata No. 250, Khewat No. 8/2, village Ganga, P. S. Basia, district Ranchi, numbered as Title Suit 50 of 1960. The plaintiff’s case was that the suit lands were exclusive Bhuiari lands of the plaintiff and defendant No. 5 and they were in exclusive possession of those lands. The plaintiff challenged the right of defendants Nos. 1 to 4 and 6 to have any interest in the lands. The order of the Magistrate under Section 145, Code of Criminal Procedure, holding the defendants to be in possession, was unwarranted and not justified by the facts and circumstances.
2. The defendants were duly served with summons and the contesting defendants appeared and filed written statement. The defendants denied the title and possession of the plaintiff petitioner. After a number of adjournments, however, the suit was taken up for trial. The defendants did not appear and, accordingly, an ex parte decree was passed on the 22nd November, 1961.
3. On the 11th of January, 1962, defendants Nos. 2 and 6 filed a petition under Order IX, Rule 13, Code of Civil Procedure, to set aside the ex parte decree, on the ground that defendant No. 2 was lying ill for six- months and he came to know of the ex parte decree, for the first time, from one Balu Ghasi Defendant No. 6 was a minor and hence defendant No. 2 was the only adult member to look after the case. In these circumstances, the application was filed for setting aside the ex parte decree.
4. The plaintiff-petitioner however, denied that defendant No. 6, being applicant No. 1, was a minor or that defendant No. 2, who was applicant No. 2, was lying ill. It is urged further that the application for restoration was barred by limitation and the applicants had full knowledge of the suit and decree. The court below, however, by order dated the 18th September, 1964, set aside the ex parte decree and the suit was restored.
5. Mr. Sunil Kumar Choudhuri appearing in support of the petition has contended that there is no finding by the Court below that defendant No. 6 was a minor as was alleged by the applicants in support of making out a sufficient cause for non-appearance of the defendants on the date of the hearing of the suit, when the ex parte decree was passed. In the absence of such a finding, the objection of the plaintiff-petitioner that he was not a minor must be accepted; and if that is accepted, the further conclusion of the learned Additional Subordinate Judge that there was sufficient cause for the non-appearance of the applicants cannot stand. In my opinion, however, the argument cannot be acceded to.
It is true, no doubt, that the learned Additional Subordinate Judge has not found in favour of the applicant on this point and, in fact, has not scrutinised the evidence in that light. That, however, can hardly be regarded as sufficient for disturbing his finding, inasmuch as what he has found is that defendant No. 2 was lying ill and thus had sufficient cause for not appearing on the relevant date. The allegation in the petition was that he was looking after the case and, if that stands, it is immaterial whether defendant No. 6 was a minor or not a minor. If, therefore, defendant No. 2 could makeout sufficient cause for non-appearance on the date of hearing, the finding arrived at by the Court below would still be upheld as sufficient cause for non-appearance of the applicants.
6. It is next urged that there were a number of other defendants other than defendants Nos. 2 and 6 who filed the application. It is stated in the judgment that some of the defendants were not contesting defendants. There is nothing on record to show as to whether the remaining defendants or how many of them contested the suit. In the absence of that fact being on record apart from the fact that even in that case it would have to be found as to who was looking after the case, the contention cannot be accepted.
7. Mr. Choudhuri’s main point, however, is a question of law. He has urged that the ex parte decree was passed on the 22nd November, 1961, whereas the application for setting aside the ex parte decree was filed on the 11th of January, 1962, beyond thirty days of the passing of the ex parte decree. The learned Additional Subordinate Judge, however, held that there was sufficient cause for non-appearance of the applicant, applying Section 5 of the Limitation Act to Article 164 which prescribes the time-limit for an application to set aside the ex parts decree. Mr. Choudhuri has urged that it is this provision of law which would govern the position, because Section 5, as it is recast after the amendment of the Limitation Act, has now made it sufficiently comprehensive to be applicable to all applications, except those under Order XXI of the Code of Civil Procedure, whereas under the old law it applied to any appeal, application for review of judgment, for leave to appeal or any other application to which this section might be made applicable by or under any enactment for the time being in force. Thus, all applications, with the exception of those under Order XXI of the Code of Civil Procedure, are included therein and the present application also being one for setting aside an ex parte decree will be covered under the amended provisions of Section 5.
The present case, however, would not be governed by the new amendment Act which came into force on the 1st of January, 1963, because, in terms of Section 31 (b) of the Act, all applications etc. which would remain pending on the date when the new Act would come into force will be governed by the provisions of the old Act and not by the amendment. Hence, in terms, the amended Section 5 would not be applicable to such a case. The learned Additional Subordinate Judge has, however, proceeded on the ground that Section 5 of the Limitation Act would be applicable to all applications to be filed under any of the provisions of the Code of Civil Procedure other than those under Order XXI, and if sufficient cause would be made out for failure to comply with any particular order, that could be condoned and time extended under Section 5. In my opinion, however, the contention of Mr. Choudhuri is correct in so far as the view expressed by the learned Additional Subordinate Judge is concerned. It is erroneous to hold that Section 5, as it stood, applied to all applications excepting those filed under Order XXI of the Code of Civil Procedure.
The cases to which Section 5 was applicable were enumerated in Section 5 itself and there is no warrant for the view of the learned Additional Subordinate Judge that it excluded only Order XXI and applied to all other applications. As a matter of fact, whether Section 5 of the Limitation Act would be applicable to an application under Order IX, Rule 13, which is governed by Article 164 of the Limitation Act, or not has been the subject-matter of consideration in a series of decisions and it has been held that it is not so. In the case of Ajodhya Mahton v. Mt. Phul Kuer, ILR 1 Pat 277: (AIR 1922 Pat 479) it has been held that where an application to set aside an ex parte decree is made, it must be within the period of limitation which is thirty days from the date of the passing of the decree or as provided under Article 164, and failing that, the Court will have no jurisdiction to set aside the decree after the expiry of the period of limitation.
It is true, no doubt, that the High Courts of Madras and Bombay in the rules made by them have under Order IX, Rule 13, of the Code, made Section 5 of the Limitation Act applicable, but that was done because of Section 122 of the Code itself. A Full Bench of the Madras High Court in Krishnamachariar v. Sirangammal, ILR 47 Mad 824: (AIR 1925 Mad 14 FB) held such amendment of the rule as intra vires. Where, however, no such rule has been framed by the High Court, Section 5 of the Limitation Act by Itself, as it stood before, could not be applicable at all.
8. Mr. Choudhuri’s contention is also correct in so far as Section 31 of the Limitation Act is concerned which provides:
“31. Nothing in this Act shall,–
(a) enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or
(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement.” The present application being a pending application on the 1st January, 1963, would be governed by the provisions of the Limitation Act as it stood before and not the amended provisions of Section 5 which has liberalised the scope of the application of that section.
9. In the result, therefore, it must be held
that the judgment of the learned Additional
Subordinate Judge is not correct. The application is accordingly allowed and the Judgment
and order passed by the Court below are set
aside. The hearing of the application being
ex parte, there will be no order as to costs.