Mahesh Kumar And Ors. vs S.D. Khandepal And Anr.
1974 Latest Caselaw 140 Del

JUDGMENT

Yogeshwar Dayal, J.

(1) This is a petition for revision on behalf of the pi untiffs decree-holders against the order of the trial court dated December 20. 1972, setting aside the ex parte decree passed against the respondent-objector, S. D. Khandepal in favor of deceased Pvare Lal

(2) The deceased Pyare Lal on 24th October, 1962, filed a suit against the respondents. D. Khandepal and one Satendar Kumar for dissolution of patnership and rendition of accounts The respondent Khandepal filed his written statement on l2th December. 1962. Thereafter, Khandepal renpondent was called for army duty and be could not appear in court nor could he send instructions to his counsel with the result that the proceedings were hard in his absence. In spite of letter of request dated 22nd April. 1964 (Exhibit Ow 2/1) issued by the Commanding Officer whereby the court was requested to adjourn the proceeding, and inspite of written application of his counsel dated 21st November, 1964, praying for adjournment and also staling that he bad no instructions, the trial court ultimately on 7th December, 1964, passed a preliminary decree for accounts and appointed a local commissioner. The local Commissioner sent various notices to Khandepal respondent but they were received unserved with the report " addressee on army duty and out of station . The trial court thhre upon by order dated 21st February, 1965, directed that service on respondent Khanepal be effected through his counsel but without service of notice on the counsel, the local commissioner proceeded ex parte against the respondent Khandepal and ultimately the trial court passed an exparte fiial decree dated 27th February, 1965 for Rs. 7205.75.

(3) In the meantime the decree-holder died on or about 25th December, 1965 and one Mahesh Kumar filed an execution application on 13th May, 1968, on the said execution application the executing court issued notice to the Officer Commanting, 101 Infantry Battalion (FA) Poona, whereupon the Officer Commanding sent a certificate under section 7 of the Indian Soldiers (Litigation) Act, 1925 (hereinafter rtferred to as "the Act") in respect of the respondent, Khandepal with a request that proceedings against S. D. Khandepal may be postponed and in acknowledgement of issue of show cause notice dated 13th May, 1968, the Officer Commanding stated that S. D Khandepal was serving under special conditions (Exhibit 0 '-2/2). Despite all this, the proceedings continued ex-parte against the respondent Khandepal and the Officer Commanding then by a letter dated 14th October, 1988, reported the matter to the Commissioner, Delhi, with a copy to the Court and also sent another communication to the Court dated 18th October, 1968, (Exhibit DW2/5) The Officer Commanding again wrote a letter dated 26th November, 1968, requesting the executing court for postponement of the hearing. But in spitp of all these letters the executing court continued the execution proceeding and ultimately the respondent Khandepal was served on 3rd April, 1970. On 27th April, 1970, the respondent Khandepal filed objections petition wherein it was stated that he could not contest the suit on merits because he was in the field area being an army officer and the benefit of the Soldiers Act was not given to him. This application was amended with leave of the court and amended objections were filed on 27th August, 190. It was pleaded in the amended objections that during the pendency of the suit and at the time of the passing of the preliminary decree and the final decree the judgment-debtor objector was serving in the army under the special conditions as defined in section 3 of the Indian Soldiers (Litigation) Act and the exparte decree may therefore be set aside. A reply was filed to the above by the petitioners decree. holders on 23rd September, 1970.

(4) The trial court on the consideration of the entire material treated the objections as an application under section 10(1) of the Act and held that the decree was liable to be set aside in the interest of justice as the respondent, Khandepal, was serving under special conditions as an Indian Soldier.. The trial court also held that in view of section 10(2) of the Act the application was not barred by time.

(5) Mr. Sehgal, learned counsel for the decree-holders petitioners has submitted before me that there were no proper certificates sent by the Commanding Officer, as required by the Act while the suit was pending 'till the final decree and, in any case, the executing court has misconstrued section 10(2) of the Act, and the objections dated 27th April, even if they were treated as an application under section 10(1) of the Act, were barred bytime. It was also submitted that in the absence of the certificates being issued by the Commanding Officer under section 7 of the Act. the decree could not be set aside.

(6) In order to substantiate the aforesaid objuctions filed by the respondent Khandepal, the respondent examined Hawaldar Clerk, Arjun Malik as Owi and also examined himself as his own witness. Owi, Hawaldar Arujun Malik stated that the objector was serving in the 101 Infantry Battalion (FA) from January, 1954 to 31st October, 1969,that he had brought the service record and that the objector was serving under special war conditions from 8th January, 1964 to 31st December. 1964; and that the objector, thereafter, was posted at Belgaon on 7th January, 1965 till 31st October, 1969 under special conditions. This statement of Owi was corroborated by the statement of the respondent Khandepal himself, who stated that he was a soldier in the territerial army and was commissioned in the month of May, 1962 ; that he was called for active service from June, 1963 to December, 1963 and again from 8th January, 1964 to 31st December, 1964 ; and that he was working under special conditions from 7th January, 1965 to 31st October, 1969. He also stated that while he was working under special conditions or war conditions he did not receive any intimation or notice either from the trial court or from any lawyer or from any body. The respondent objector further stated that he learnt of the decree in April 1970 and that he never came to Delhi between June 1963 to. October 1969 and after being in service under special conditions, he was again on duty after having been served on 3rd April, 1970.

(7) Section 10(1) and 10(2) of the Act provided asunder:

"10(1) In any proceeding before a Court in which a decree or order has been passed against any Indian soldier whilst he was serving under any special conditions, the soldier (or, if he is dead, his legal representative) may apply to the Court which passed the decree or order for an order to set aside the same, and, if the Court, after giving an opportunity to the opposite party of being heard, is satisfied that the interests of justice require that the decres or order should be set aside as against the soldier, the Court shall, subject to such conditions, if any, as it thinks fit to impose, make an order accordingly. (2) The period of limitation for an application under sub-section (1) shall be ninety days from the date of the decree or order, or, where the summons or notice was not duly served on the 'soldier in the proceeding in which the decree or order was passed, from the date on which the applicant had knowledge of the decree or order; and the provisions of section 5 of the Indian Limitation Act, 1908, shall apply to such applications."

(8) It will be noticed that for the applicability of section 10(1) all that the soldier is required to prove is that he was serving under special conditions. The trial court found that the respondent, Khandepal, was serving under special conditions from 8th January, 1964 to 31st October, 1969 and this finnding of the trial .court, was not challenged by the petitioners In view of this finding of the trial court, the objections were rightly treated as one under section 10(1) of the Act. The question whether the objector, Khandepal was a soldier within the meaning as contemplated by section 10(1) on the Act was not even disputed. The only question which was seriously argued by the learned counsel for the petitioners was that the objections were barred by time. It was pleaded that section 10(2) of the Act is in two parts, namely, (1) either the limitation runs from the date of the decree or order and (2) where summons or notices were not duly served on the soldier in the proceedings in which the decree or order was passed, the limitation runs from the date on which the applicant had knowledge of the decree. It was therefore submitted that admittedly the respondent Khandepal was served in the suit and trial court was not right in counting the period of limitation from the date of knowedge of the decree. It was' submitted that limitation should have been counted only from the date of the decree or order and in the absence of an application under section 5 of the Limitation Act, the delay could not be condoned and therefore it was submitted that the objections, in any case, have to be dis- missed as barred by time.

(9) From a bare reading of section 10(2) of the Act, it will be noticed that it provides a period of 90 days for making an application to set aside an ex-parte decree under section 10(2) of the Act, the starting point of the period of limitation being "the date of passing of the decree or where summons or notice was not duly served, when the applicant had the knowledge of the decree". The instant case was not one were the summons in the suit had not been served on the respondent-objector, Khandepal, so that the starting of limitation period of 90 days could not possibly run from the date of knowledge of the decree, which in the present case, as found by the trial court, was 3rd April, 1970. The starting point of limitation in the presnt case was undoubtedly the date of the decree or order. The preliminary decree was passed on 7th December, 1 64 and the final decree was passed on 27th February. 1965. The second part of section 10(2) comes into play only whei e summons or notice in the suit had not been served. The trial court was, therefore; wrong in fixing 3rd April, 1970, as the date from which limitation would start. Limitation would run from the date of the preliminary decree or final decree which are sought to be set aside.

(10) The provisions of section 10(2) of the Act are in pari materia with the provisions of Article 123 of the Indian Limitation Act which provides limitation of 30 days for setting aside an ex-parte order or decree and provides two identical starting points of limitation as in section 10(2) of the Act. Section 10(2) of the Act being similur to Article 123 of the Limitation.Act, the authorities on Article 123 of the Limitation Act are a safe guide. The aforesaid view which I have taken of section 10(2) of the Act in the aforesaid manner, tinds support from the numerous judgments of various High Courts while interpreting Article 123 of the Limitiation Act. See: Mst..Sundari v. Sakal Sahni, Mahendralal Barooah v. Ramprosad, Sodhi Harnam Singh v. Sodhi Mohinder Singh Tara Chand and others v. Ram Chand

(11) It is clear from the statement of Hawaldar Arjun Malik (OWI) and the respondent Khandepal that before the preliminary decree wore passed the respondent was serving under special conditions as contemplated by section 10(1) of the Act till 31st 0ctober,.4969 and thereaftar the respondent objector was posted outside Delhi and even after service of notice on 3id April 1970, he was out of Delhi in service. These facts are all established by the evidence of the objector on oath and as found even by the trial court. It is not necessary that thera should be an application under section 5 of the Limitation Act to enable a party to claim the benefit thereof. In the case of Firm Kaura Mal Bishan Dass v. Firm Mothra Dass Atma Ram (as he them was) held:

"THE discretion under S. 5 of Limitation Act has to be a judicial discretion and not an arbitrary one Merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it......"

(12) It has frequently been held that the procedure is meant for advancing and not for obstructing the cause of justice; and if the entire material is on the record, it cannot promote the ends of justice, if that material is ignored and the relief refused to the respondent, merely because he had not claimed it by means of a formal application in writing on that a formal affidavit was not filed. The language of S. 5 also does not provide that an application in writing must be filed before relief under the said provision can be granted. The above view of Dua J. was followed by Pandit J. in the case of Mela Singh v. Kartar Singh wherein it was held that section 5 of Limitation Act only lays down that the applicant has merely to satisfy the court that he had sufficient cause for not making an application to get an exparte decree set aside during the prescribed period. It does not mention that the applicant must put in a formal application for that purpose. A formal application under this section is not necessary to be filrd in order to attract its applicability. The applicant can put in an affidavit explaining the delay in the filing of the application. On the basis of such explanation given in the affidavit he can claimthe benefit of that section.

(13) In the present case instead of affidavit we have full explanation of the respondent objector in his own statement on oath as well as the statement of OW1. Even though the trial court computed the period of limitation from a wrong starting point, I find nothing wrong ingiving the benefit of section 5 to the respondent objector in order that he may support the order passed in his favor by the trial court.

(14) It was argaed by the learned couasel for the petitioners that the period has been explained only till 31st October, 1969 while 'the respondent was serving under special conditions and the period thereafter has not been explained. It will be noticed that the unrebutted evidence of the objector is that he remained in service outside Delhi even after service of the notice of execution application on 3rd April, 1970, and therefore it cannot be said.that the delay in filing the objections on 27th April, 1970 has not been explained. The learned counsel for the petitioners relied on a Judgment of the Supreme Court in the case of Ramlal, Motilal and Chhoyelal v. Rewa Coalfields Ltd wherin it has been held that the applicant must explain each day's delay after the expiry of the limitation. I find that this test has been fulfillled in the present case.

(15) The result is that the present petition fails and is dismissed with costs.