MAHABIR SINGH versus SUBHASH AND ORS.

Citation: [2007] 11 S.C.R. 436 · Decided: 12-10-2007 · Supreme Court of India · Bench: S.B. SINHA

Judgment (excerpt)

-r~ 
A 
MAHABIR SINGH 
v. 
SUBHASH AND ORS. 
OCTOBER 12, 2007 
B 
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.] 
~ 
Limitation Act, 1963-Section 3 and Schedule Article 123-
"f 
Limitation for filing application for setting aside ex-parte decree-
c Non-appearance of defendant despite delivery of summons-Ex-parte 
decree-Application for setting aside the decree after its execution-
Defendant admitting to the effect that he had knowledge of the decree 
one and half years prior to filing of application-Maintainability of 
the application-Held: Application was not maintainable-Defendant 
D was unable to establish absence of service of summons-Application 
was also barred by limitation-Code of Civil Procedure, 1908-0r. 9 
r. 13. 
An ex-parte decree was passed on 19.2.1986, in a suit filed by the 
E appellant, as the respondent-defendant did not appear in the court 
despite service of summons on him. An application for mutation on the 
basis thereof was allowed on 7.3.1996. Respondent filed application for 
setting aside of the ex-parte decree on 7.2.1997. The respondent in his 
cross-examination admitted that he had approached the appellant for 
F 
not giving effect to the decree one and a half year prior to filing of the 
application. Trial Court dismissed the application. Appeal thereagainst 
"'\-
was also dismissed. High Court allowed the Revision application, on 
the ground that summons were not properly served and the appellant 
had not taken recourse to publication in the Newspapers. Hence the 
G present appeal. 
Allowing the appeal, the Court 
)..... 
HELD: 1. The approach of the High Court was not correct There 
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436 
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MAHABIR SINGH v. SUBHASH 
437 
exists a presumption that the official act has been done in ordinary course A 
of business. Admittedly, an ex-parte decree was passed. Defendant for 
getting it set aside was required to establish that either no summons 
was served on him or he had sufficient cause for remaining absent on 
the date fixed for hearing the suit ex-parte. [Para 6J [440-E, F] 
2. Article 123 of the Limitation Act, 1963 provides for 30 days time B 
for filing such an application. Even assuming for the sake of argument 
that no proper step was taken by the appellant herein for service of 
summons upon the respondent and/or the service of summons was 
irregular, evidently, it was for the defendant-respondent to establish as C 
to when he came to know about the passing of the ex-parte decree. Even 
in his cross-examination, the first respondent has categorically admitted 
that he had approached the appellant herein for not giving effect thereto 
one and half year prior to filing of the application, and, thus, he must be 
deemed to have knowledge about passing of the said ex-parte decree. D 
The period oflimitation would, thus, be reckoned from that day. As the 
application under Order IX Rule 13 CPC was filed one and a half year 
after the first respondent came to know about passing of the ex-pa rte 
decree in the suit, the said application evidently was barred by limitation. 
In terms of Section 3 of the Limitation Act, 1963, no court shall have E 
jurisdiction to entertain any suit or application if the same has been filed 
after expiry of the period oflimitation. The High Court could not have 
ignored the said jurisdictional fact. 
[Paras 7, 8 and 9] [440-F; 441-C, D, E, F] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4881 of F 
2007. 
From the Judgment and final Order dated 14.02.2005 of the High 
Court of Punjab and Haryana at Chandigarh in Civil Revision Petition No. 
5999 of 2003. 
A. Nehra, Gagandeep Sharma and Rameshwar Prasad Goyal for G 
the Appellants. 
Manjit Singh, B.K. Satija and D. Mahesh Babu for the Respondents. 
The Judgment of the Court was delivered by 
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438 
SUPREME COURT REPORTS 
[2007] 11 S.C.R. 
A 
S.B. SINHA, J. 1. Leave granted. 
2. Appellant is before us being aggrieved by and dissatisfied with a 
judgment and order dated 14.2.2005 passed by the High Court of Punjab 
and Haryana in Civil Revision Petition No.5999 of2003 whereby and 
whereunder the Revision Application filed by the first respondent herein 
B was allowed. 
3. Appellant filed a civil suit on or about 6.4.1985. Summons of the 
suit were served upon the first respondent. He did not appear. An ex 
parte decree was passed against him on 19 .2.1986. An application for 
C mutation on the basis thereof was filed which was allowed on 07.03.1996. 
Allegedly, the first respondent having come to know abou

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