Exparte decree set aside petition

M. PIRAVI PERUMAL (Querist) 28 July 2012 This query is : Resolved
An application to set aside the exparte decree has been filed within 30 days from the DATE OF KNOWLEDGE.
The contention is that the application is filed in time as it has been filed within 30 days from the date of knowledge.
But the other side contends that application has not been filed under Section 5 of Limitation Act.
Can learned members of LCI give me any citations to support that application to set aside exparte decree can be filed within 30 days of knowledge and that there is no need for application u/s 5 of Limitation ACt ?

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prabhakar singh (Expert) 29 July 2012
Such an application is moved under order9 rule 13 of C.P.C,for which limitation is provided in article 123 of the Limitation Act
which runs as follows:

123.
*To set aside a decree passed ex prate or to rehear an appeal decree or head ex prate.
Explanation - For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 shall not be deemed to be due service.
**Thirty days
***The date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree.

Read carefully the para marked***specially the words "when the applicant had knowledge of the decree".

Did you put it before the court?
Do you still need any case law for such a plain situation of law??

However you may visit http://indiankanoon.org/doc/1278841/