Mode Narain Singh vs Bikram Singh

Das, J.—This application is directed against an order of the learned Subordinate Judge dated the 18th November, 1922. The petitioner obtained an ex-parte decree on the 22nd May 1922 as against the opposite party. On the 18th July 1922 the opposite party applied for setting aside the ex-parte decree under Order 9, rule 13. The application was on the face of it barred by limitation and it was necessary for the opposite party to establish that his application was made within thirty days from the date he became aware of the ex-parte, decree against him. The learned Vakil appearing on behalf of the opposite party states before us that there are materials in the record which would enable the Court to come to the conclusion that as a matter of fact the application was made within time. That may be so, but there is nothing in the judgment of the learned Subordinate Judge to indicate that he at all considered the point as to limitation. The order of the learned Subordinate Judge must be set aside, and the case remanded to him for disposal according to law.

The learned Vakil for the petitioner states to us that he summoned two witnesses to give evidence in the case and that they were not present on the day when the learned Subordinate judge proceeded to try the case. He complains that it was not his fault that his witnesses were not present in Court and that the learned Subordinate Judge should have taken steps to have them produced in Court. We think that the position taken up by the learned Vakil is right. The learned Subordinate Judge must give an opportunity to the petitioner to call those two witnesses. The petitioner is entitled to the costs of this application: hearing fee one gold mohur.

Bucknill, J.

I agree.