1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No. 8912/2008 {Prahlad Versus Smt. Shobhag Kanwar & Others} Date of Order :: 2nd September, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Jai Prakash Gupta for the petitioner BY THE COURT: Heard learned counsel for the petitioner. 2. The plaintiff-respondents filed a suit for eviction wherein a notice of suit was served upon the defendant-petitioner on 28th April, 2000 and he entered his appearance through his advocate and sought time for filing the written statement. The defendant or his counsel did not appear subsequently, therefore, ex-parte order was passed and ultimately an ex- parte decree was passed on 4th December, 2001. The defendant moved an application under Order 9 Rule 13 CPC for setting-aside the ex-parte decree on 13th May, 2004 i.e. afer two years and five months alongwith an application under Section 5 of the Limitation Act contending therein that he came to know about ex-parte 2 decree when he received a notice of execution application on 25th April, 2004 and immediately thereafter an application has been filed on 13th May, 2004. The trial court rejected the application under Section 5 of the Limitation Act as well as under Order 9 Rule 13 CPC readwith Section 151 CPC vide order dated 1st April, 2006. Being aggrieved with the same, an appeal was preferred, but the same was also dismissed vide order dated 21st August, 2008. Being aggrieved with the aforesaid two orders, the defendant-petitioner has preferred this writ petition. 3. Learned counsel for the petitioner contended that although a notice of suit was served upon him on 28th April, 2000 but he engaged his advocate, who sought time for filing the written statement but subsequently his advocate did not appear and he could not know about passing of ex-parte order or ex- parte decree and he came to know about passing of the ex-parte decree only on 25th April, 2004 when he received notice of execution application and immediately thereafter he filed an application on 13th May, 2004, therefore the delay in filing the application should have been condoned and ex-parte decree should have 3 been set-aside, but both the courts below have committed an illegality in passing the impugned orders, which are liable to be set-aside. 4. I have considered the submissions of learned counsel for the petitioner in the light of reasons assigned by both the courts below for rejecting the application under Section 5 of the Limitation Act as well as under Order 9 Rule 13 CPC filed by the petitioner. So far as facts of the case are concerned, the same are not in dispute that notice of suit was served upon the defendant-petitioner on 28th April, 2000 and he entered his appearance also in the trial court through his advocate. The ex-parte decree was passed on 4th December, 2001. The application under Order 9 Rule 13 CPC was filed after a delay of about two years and five months i.e. on 13th may, 2004. As per Article 123 of the Limitation Act, 1963, the period of limitation for filing the application to set- aside the ex-parte decree is thirty days from the date of decree or where the summons or notice was not duly served when the applicant had knowledge of the decree. It is not a case where notice or summon was not served upon the defendant-petitioner. It is admitted case that notice or summon of the suit was served upon 4 the petitioner way back on 28th April, 2000 and he entered his appearance also in the trial court. Therefore, period of thirty days will commence from the date of decree and not from the date of knowledge, as contended by the learned counsel for the petitioner. 5. The trial court as well as appellate court both have rightly rejected the application of the petitioner. Both the orders do not call for any interference by this Court under Article 227 of the Constitution. 6. The Hon'ble Supreme Court in Babhutmal Raichand Oswal Versus Laxmibai R. Tarte and another {AIR 1975 Supreme Court 1297} held that the High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence 5 and re-appreciating it. 7. The Hon'ble Supreme Court in Mohd. Yunus Versus Mohd. Mustaqim {AIR 1984 Supreme Court 38} held that in exercising the supervisory power under Article 227, the High Court does not act as an appellate court or Tribunal. 8. In view of above, I find that there is no merit in this writ petition and the same is, accordingly, dismissed in limine. (NARENDRA KUMAR JAIN),J. DK