Appeal No 866 of 1964
Appeal by special leave from the judgment and order dated April 7 1964 the Allahabad High Court in FAFO No 367 of 1959
SG PatwardhanRameshwar Nath
and Mahinder Narain and Prayag Das Agarwal for the appellants
J P Goyal and Raghunath Singh for the respondents
758 The Judgment of the Court was delivered by Bachawat J
This appeal incidentally raises a question of interpretation of article 164 of the Indian Limitation Act 1908
The respondent instituted two suits against the appellant in the court of the First Civil Judge Kanpur
Suit No 25 of 1958 was for the recovery of moneys due on a mortgage for Rs 50000
Suit No 22 of 1958 was to recover a sum of Rs 8000 due on a ruqqa
On May 15 1958 both the suits were decreed ex parte
The appellant filed an application to set aside the ex parte decree passed in Suit No 22 of 1958
This application was numbered as miscellaneous case No 104 of 1958
On August 16 1958 the First Civil Judge Kanpur passed an order setting aside this ex parte decree on certain conditions
The order sheet in OS No 22 of 1958 Misc
Case No 104 of 1958 on August 16 1958 stated  Heard parties counsel accept the applicant s affidavit and hold that due to non service applicant was prevented from being present
Allowed on condition of payment of Rs 150 as costs within a month and on condition that allotment shall continue
Sd K N Goyal 16 8 58 Applicant is hereby informed of connected decree of 25 of 1958 as well
Sd K N Goyal 168
 An appeal by the appellant from this order was dismissed on September 25 1958
On February 5 1959 an advocate em ployed by the appellant to file a civil revision petition against the appellate order obtained a certified copy of the order dated August 16 1958
On February 24 1959 a civil revision petition was filed by the appellant against the appellate order
On April 16 1959 the appellant filed an application in the Court of the First Civil Judge Kanpur under 09 r 13 CPC for the setting aside of the ex parte decree passed in Suit No 25 of 1958
The Civil Judge dismissed the application An appeal from than order filed by the appellant was dismissed by the High Court
Both the courts held that the summons in Suit No 25 of 1958 was not duly served on the appellant but as more than 30 days had expired after the appellant had knowledge of the ex parte decree the application was barred by Limitation under article 164 of the Indian Limitation Act 1908
The appellant Dow appeals to this Court by special leave
Under 09 r 13 CPC a decree passed ex parte against a defendant is liable to be set aside if the sununons was not duly 759 served or if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing
If the
summons is not duly served the defendant suffers an injury and be is entitled ex debito justitiae to an order setting aside the ex parte decree provided he applies to the court within the prescribed period of limitation
Under article 164 of the Indian Limitation Act 1908 the period of limitation for an application by a defendant for an order to set aside a decree passed ex parte was 30 days from the date of the decree or when the summons was not duly served when the applicant had knowledge of the decree
The Onus is on the defendant to show that the application is within time and that he had knowledge of the decree within 30 days of the application
If the defendant produces some evidence to show that the application is within the it is for the plaintiff to rebut this evidence and to establish satisfactorily that the defendant had knowledge of the decree more than 30 days before the date of the application
In Pundlick Rowji vs Vasant rao Madhavrao1 Davar J held that the expression knowledge of the decree in art  164 means knowledge not of a decree but of the particular decree which is sought to be set aside a certain and clear perception of the fact that the particular decree had been passed against him
On the facts of that case Davar J held that a notice to the defendant that a decree had been passed against him in the High Court Suit No 41 1 of 1909 in  favour of one Pundlick Rowji with whom he had no dealings was not sufficient to impute to him clear knowledge of the decree in the absence of any information that the decree had been passed in favour of pundlick Rowji as the assignee of a promissory note which he had executed in favour of another party
This case was followed by the Calcutta  High Court in Kumud Nath Roy Chowdhury vs Jotindra Nath Chowdhury1
 In Bapurao Sitaram Karmarkar vs Sadbu Bhiva Gholap3 the Bombay High Court held that the evidence of two persons who had been asked by the plaintiff to
tell the defendant  about the decree and to settle the matter was not sufficient to impose knowledge of the decree on the defendant within the meaning of article 164
Macleod CJ said We think
the words of the article mean something more than mere knowledge that a decree had been passed in some suit in some Court against the applicant
We think it means that the applicant must have knowledge not merely that a decree has been passed by some Court against him but that a particular decree has been passed against him in a particular Court in favour of a particular person for a particular sum
A judgment 1 11 BLR 1296
2 ILR 403
3 ILR 7 60 debtor is not in such a favourable position as he used to be when he had thirty days from the time when execution was levied against him
But we do not think that the Legislature meant to go to the other extreme by laying down that time began to run from the time the judgment debtor might have received some vague infor mation that a decree had been passed against him
 This decision was followed in Batulan vs section K Dwivedi1 and other cases
We agree that the expression knowledge of the decree in article 164 means knowledge of the particular decree which is sought to be set aside
When the summons was not duly served limitation under article 164 does not start running against the defendant because he has received some vague information that some decree has been passed against him
It is a question of fact in each case whether the information conveyed to the defendant is sufficient to impute to him knowledge of the decree within the meaning of article 164
The test of the sufficiency is not what the information would mean to a stranger but what it meant to the defendant in the light of his previous dealings with the plaintiff and the facts and circumstances known to him
If from the information conveyed to him the defendant has knowledge of the decree sought to be set aside time begins to run against him under article 164
It is not necessary that a copy of the decree should be served on the defendant
It is sufficient that the defendant has knowledge of the material facts concerning the decree so that he has a clear perception of the injury suffered by him and can take effective steps to set aside the decree
In this case in his application for setting aside the ex parte decree the appellant stated that he got the information of the passing of the ex parte decree in suit No 25 of 1958 for the first time from the respondent on April 13 1959
It has been shown conclusively that this statements false
The respondent filed an affidavit stating that the appellant was directly informed of the passing of this ex parte decree by the First Civil Judge on August 16 1958
This statement was not denied by the appellant
The courts below concurrently found that the appellant was personally present in the court of the First Civil Judge on August 16 1958 when the learned judge informed him that an ex parte decree had been passed against him in Suit No 25 of 1958
The appellant was informed that suits Nos 22 and 25 of 1958 were connected suits
The appellant knew that he had dealings with the respondent in respect of a ruqqa and a mortgage
He knew that the suit No 22 of 1958 was filed on the ruqqa
From the information conveyed to him by the Civil Judge on August 16 1958 it must have been clear to the appellant that an ex parte decree had been passed against him in favour of the respondent in suit
10251050 8 761 of 1958 on the basis of the mortgage
The appellant had thus on August 16 1958 clear knowledge of the decree passed against him in suit No 25 of 1958 which he now seeks to set aside
Time began to run against him from August 16 1958 under article 164 of the Indian Limitation Act 1908
The application filed by him on April 16 1959 was therefore clearly barred by limitation and was rightly dismissed by the courts below
In the result the appeal is dismissed with costs
VPS Appeal dismissed


Summary:
The appellant had dealings with the respondent in respect of a ruqqa and a mortgage
The respondent filed two suits against the appellant for recovery of the moneys due on the ruqqa and the mortgage respectively
The summons in the suits was not duly served on the appellant and the suits were decreed ex parte
The appellant then filed an application to set aside the ex parte decree in the suit on the ruqqa
The court passed an order on 16th August 1958
 setting aside that ex parte decree and also informed the appellant who was present in court on that day of the passing of the ex parte decree in the mortgage suit
On 16th April 1959 the appellant filed an application for setting aside the ex parte decree in the mortgage suit
The trial court and the High Court held that the application was barred by limitation under article 164 of the Indian Limitation Act 1908 as more than 30 days had expired after the appellant had knowledge of the ex parte decree
In appeal to this Court HELD The application was rightly dismissed
Under article 164 of the Limitation Act the period of 30 days is counted when the summons is not duly served from the date when the applicant had knowledge of the decree and the expression knowledge of the decree means knowledge of the particular decree which is sought to be set aside
It is a question of fait in each case whether the information conveyed is sufficient to impute the knowledge and the test is not what the information would mean to a stranger but what it meant to the defendant in the light of his previous dealings with the plaintiff and the facts and circumstances known to him 759 B 760B D Pundlik Rowji vs Vasantrao Madhav Rao 11 BLR 1296 Kumud Nath Roy Choudhury vs Jotindra Nath Chowdhury ILR  Bapuraa Sitaram Karmarkar vs Sadbu Bhiva Gholap
ILR and Batulanv
SK Dwivedi ILR 33 Patna 1025 approved