Holding

The summons was not duly served; therefore, the limitation period began from the University’s knowledge of the ex parte decree, making the application timely.

Summary

The Gauhati University was served a summons on 28 May 1990 to appear on 29 May 1990 in a suit. The University sought an adjournment, the case was adjourned to 19 July 1990, but the new date was never communicated, leading to an ex parte decree. The University filed an application under Order IX Rule 13 of the CPC to set aside the decree, which was rejected by the trial court and the High Court on the ground that the limitation period under Article 123 of the Limitation Act had expired. The Supreme Court held that the summons was not duly served because the appearance date gave the University insufficient time and no further notice was issued as required by Order IX Rule 6(c). Consequently, the limitation period began only when the University learned of the decree, and the application was filed within the 30‑day period. The appeal was allowed, the ex parte decree was set aside, and the matter was remitted to the trial court for further proceedings.

Issues considered

Whether the summons served on the University was 'duly served' for the purpose of triggering the limitation period under Article 123 of the Limitation Act, 1963.
When does the limitation period commence if the summons is served but not in due time?
Whether the application under Order IX Rule 13 CPC is barred by limitation in the present facts.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13, s. Order IX Rule 6
Limitation Act, 1963s. Article 123

Subjects

ex parte decreelimitation periodsummons serviceCPC Order IXArticle 123 Limitation Actsetting aside decreedue timeadjournment

Judgment

GAUHATI UNIVERSITY .
,,...,~

A
v.
SHRI NIHARLAL BHATTACHARJEE

NOVEMBER 2, 1995

B [K. RAMASWAMY AND B.L. HANSARIA, JJ.]
•
Code of Civil Procedure, 1908/Limitation Act, 1963:

Or. IX, Rules 6, 13/Schedule, Article 123-Suit-Summom~Seivice
c of-Summons se1ved on defendant but not in due time Suit decreed ex
paite-Application for setting aside ex-pa1te decree rejected as burred by
limitation-Held, summons not duly served as defendant did not have due
time-Court to dir<ct notice of fwure date to defendant-In absence of such
notice, limitation to begin from knowledge of cr parte decree.

D The appellant-University was served on 28.5.1990 with summons for
appearance as defendant in a suit before the Civil Court on 29.6.1990. The
University sent a letter to the court seeking adjournment. The case was
adjourned, but the University was not Intimated of the next date. The suit
was decred crpa1te. The application under Or. IX Rule 13, C.P.C. filed by
E the University for setting aside the ex pa1te decree was rejected as barred
by limitation. The University, being unsuccessful in appeal before the High
Court, filed in the present appeal by special leave.

Allowing the appeal, setting aside the ex parte decree and remitting
the matter to the Civil Court, this court.
F
HELD : 1. Limitation begins to run under Article 123 of the Schedule
to the Limitation Act, 1963 from the date of decree if the summons Is proved
to be duly served. When the summons, through served, but the defendant
did not have due time, Clause (C) of Rule 6 of Order IX, C.P.C. envisages
further notice to be given to the defendant fixing a future date. [766-F]
G
2. In the instant case, though notice was served on the def~ndant-
University on May 28, 1990, the date fixed for appearance being May 29,
1990 there was no time much less sufficient to reach the Court for ap·
pearance on that date. While adjourning the suit to July 19, 1990, the said
H date was not communicated to the University. Thus, the summons was not
764
, ..,~
GAUHATI UNNERSITYv. N. BHATIACHARJEE 765

duly served. The limitation began to run only when the University bad A
knowledge of the ex parte decree. From the date of the knowledge, admit·
tedly, the application under Order IX, Rule 13 was filed within 30 days.
[766-G-H, 767-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1246 of
1995. B
From the Judgment and Order dated 26.5.95 of the Gauhati High
Court in C.R. No. 94/95.

P.K. Goswami, Kailash Vasdev, Rajiv Mehta and Ms. Vanita Sahni
for the Appellant. C

B. D. Ahmed, Parijat Sinha, for Lawyers Associates for the
Respondent.

The following Order of the Court was delivered :
D
Leave granted.

The appellant-University was impleaded as a party-defendant to the
Title Suit No. 61/90 on the file of the Munsiff No. (1), District Karimganj
in Assam. The suit was posted for appearance on May 29, 1990 but the
summons were served on the appellant on May 28, 1990. He sent a letter E
to the Court seeking adjournment. Though the case was adjourned to July
19, 1990., the adjourned date was not intimated to the university. In
consequence, the University did not enter appearance and the suit was
ultimately decided exparte. The appellant filed an application under Order
9 Rule 13 CPC to set aside the ex parte decree. The Trial Court held that p
it was barred by limitation under Article 123 of the Schedule to the
Limitation Act, 1963. On appeal, the High Court confirmed the order.
Thus, this appeal by special leave.

Column 3 envisages that limitation would run from the date of the
decree, or where the summons or notice was not duly served, when the G
applicant had knowledge of the decree. The question, therefore, is
whether the appellant has been duly served.

Order 5 Rule 6 CPC provides that :

"6. Fixing day for appearance of defendant. - The day for the H
766 SUPREME COURT 1<.EPOK!S [lYY)j !>lJt'l'. 45.C.R.

A appearance of the defendant shall be fixed with reference to the
current business of the Court, the place of residence of the defen-
dant and the time necessary for the service of the summons; and
the day shall be so fixed as to allow the defendant sufficient time
to enable him to appear and answer on such day."

B Order 9 Rule 6 speaks of due service.

"6. Procedure when only plaintiff appears, - (1) where the plaintiff
appears and the defendant does not appear when the suit is called
on for hearing, then -

c (a) When summons duly served. - if it is proved that the summons
was duly served, the Court may make an order that the suit be
heard expa1te;

(b) When summons not duly served. - if it is not proved that the
summons was duly served, the Court shall direct a second summons
D
to be issued and served on the defendant;

(c) When summons served but not in due·time - if it is proved that
the summons was served on the defendant, but not in sufficient
time to enable him to appear and answer on the day fixed in the
E summons, the Court shall postpone the hearing of the suit to a
future day to be fixed by the Court, and shall direct notice of such
day to be given to the defendant."

It would thus be seen that when the summons is proved to be duly
served, then the limitation beings to run under Article 123 from the date
F of decree. But when the summons, though served, but the defendant had
not had due time, clause (c) Rule 6 of Order 9, envisages further notice to
be given, flXing a future date and the Court shall direct notice of such date
to be given to the defendant. In this case, admittedly, no such step had
been taken.
G It is seen that though notice was served on the appellant on May 28,
1990 and the date fixed for appearance was May 29, 1990, there was no
time much bs sufficient, to reach the Court for appearance on that date.
While adjourning the suit to July 19, 1990, the said date was not communi-
cated to the appellant, as envisaged in clause (c) Rule 6 of Order 9. Thus,
H the summons was not duly served. The limitation began to run only when
GAUHATI UNIVERSITY v. N. BHA"ITACHARJEE 767

the appellant had knowledge of the ex pm1e decree. From the date of the A
knowledge, admittedly, the application was filed within 30 days. The Courts
below had not adverted lo this aspect from this perspective.

The appeal is accordingly allowed. The ex pm1e decree is set aside.
The matter is remitted to the Trial Court. The appellant shall appear on
December 4, 1995 before the Trial Court which would take such steps as B
arc needed for filing the written statement etc. No costs.

R.P. Appeal allowed.

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