Surjit Singh Toor t/a Frank Sestito & Co. v. Babla & Gajjar Auto Garage, Civ. Rev. 2-D-67, 22/4/68, Hamlyn J.

Surjit Singh Toor t/a Frank Sestito & Co. v. Babla & Gajjar Auto Garage, Civ. Rev. 2-D-67, 22/4/68, Hamlyn J.

This was an application by plaintiff for relief from a ruling setting aside an ex parte judgment in his favour. Plaintiff had filed an action and defendant was served with the summons in Mbeya. Although defendant forwarded the defence and later the fees, there was apparently a mis-delivery and subsequent confusion as to whether defendant had filed his defence. As a result of this confusion, and through no fault of the defendant, the court was unaware that a defence had been filed when it made an ex parte judgment in favour of plaintiff on 18the May, 1967. On 22 June, 1967, defendant first became aware of the ex parte judgment when he was ordered to show cause why execution should not be ordered. On 19 July, defendant filed an affidavit to set aside the judgment and the judgment was set aside. Plaintiff contended that under Article 164 of the Limitations Act, the defendant had thirty days from the date of the ex parte judgment to file his application, and that as he had not done so within that time, the order setting aside the decree was improper.

            Held: Article 164 of the Indian Limitation Act refers to the date of the decree which (under Indian procedure can usually be ascertained from the summons. This not the case where, as here, the summons originates under Rule 7  (1) of the Subordinate Courts (Civil Procedure – Summonses and Pleadings) Rules, 1955, and therefore the provisions of Article 164 must be interpreted to mean that the 30-day limitation period runs from the date when such decree became known to defendant.

            The Court stated, obiter, “In cases where the summons is for disposal, of course, the ordinary wording of the Article obtains.” Application dismissed.