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V.G.Rao Advocate (Advocate)     22 July 2011

whther sec 5 of limitation act applicable or not?

Hi all,

"A" filed a suit against "B" for recovery of money basing on Pro note, "B" made appearence and filed vakalat through his counsel. "B" had not filed his Written statment within the statutory period or after court granting sufficient time to file same, but after giving sufficient opportunityies to him, "B" was set Ex-Parte by the court for non filing his W.S and for his non appearence. thereafter the case was posted for trial. After 11 months keeping quite, "B" filed application u/o 9 r/7 to set a side exparte order passed against him without filing his WS  and without serving the copy of the same to the plaintiff in S.R. However the office of the concern court has not put up petition on file since the "B" not tried to  pursue the petition nor appeared before the court .

However thereafter the matter adjourned for three more months, and  the court has recorded the evidence of plaintiff and decreed the suit on 01-02-2011 ex -parte against the "B"

After passing of ex parte decree, Plaintiff had filed Execution petition for attachment of salry of "B", and  court ordered for attachment of salary of "B", and attachment of salary was effected, and three months salary of "B" was already deducted and credited to the account of E.P.

While matter stood thus "B" filed application u/o 9 r/13 on 9-03-2011pleading that he came to know about passing of ex parte decree against him only on 28-02-2011, ( i.e the date of Knowledge) and  the petition is well  within the limitation, and apart from the said petition "B" also filed  a petition in E.P proceedings u/o 21 rule 26(2) to stay all further proceedings in the E.P on similar pleadings.

My question is

At this stage whether the aforesaid two petitions filed by the "B" are Maintainable or not? whether the said petitions are hit by sec 5 of Indian Limitation act?

whether the petition filed U/ o 9 r/ 13 by "B" is within the period of Limitation? if yes how? If not provide any case law.

How ever the three months salary of "B" was already deducted and credited to the account of the E.P, at this stage can the same court has  power to stay all further proceedings in the said E.P?

(According to us the "B" was having knowledge of the suit from the date of filing of his vakalat, and even from the date of filing petition u/o 9 r/7 petition) viewing the said circumstances of the case whether Sec 5 of Indian Limitation act comes in to play or not?


 2 Replies

kvss.prabhakar rao (Advocate )     11 December 2011

The theory of date of knowledge is not applicable in your case. He mus file the petition under Sec 5 of limitation act. Or other wise he may loose his case 

Shantilal Pandya ( Advocate)     17 February 2012

 S. 5  of The  Limitation Act  can  be applied  in all cases of   such a  nature ,in your query  date of  passing  of exparte  order is  not  mentioned  it is important   as it is  starting point of limitation , date of  knowedge  of the  order  has no relevance  as the  defendent  has already appeared in the  suit  at  earlier stage 

 The trial  court has jurisdiction to    entrtain application  for  setting  aside exparte order  and  decree. it may  be  that  his application may  not be  allowed  looking the facts  of your  case . if the application of  setting  aside  is  filed  it is incumbant  upon  the  court  to  decide that applicatuiin first  , court cannot  keep the  said application pending  and  proceed  with  the  trai  of the  suit   it is material  illegality  and failure to  excercise jurisdiction  vested in the  court 

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