Messrs CHINA PETROLEUM ENGINEERINGCONSTRUCTION CORPORATION
This matter concerns an appeal against the dismissal of an application to set aside an ex parte decree. The appellant challenged the trial court's rejection of its application, which was filed over a year after the decree was passed. The core legal question was whether the limitation period for setting aside an ex parte decree is governed by Article 164 of the Limitation Act 1908, which prescribes a thirty-day period, or the residuary Article 181 of the same Act, which allows for three years. The Court held that Article 164 specifically governs applications to set aside ex parte decrees, rendering the residuary Article 181 inapplicable. Consequently, the Court affirmed that the application was time-barred, as it was filed well beyond the thirty-day limit. The key principle laid down is that where a specific limitation period is provided by statute for a particular remedy, the residuary provision cannot be invoked to extend that period. The appeal was dismissed in limine as the lower courts' orders were found to be neither arbitrary nor perverse.
- Does Article 164 of the Limitation Act 1908 or the residuary Article 181 apply to an application for setting aside an ex parte decree?
- Is an application for setting aside an ex parte decree filed after one year barred by limitation?
- Can the residuary Article 181 of the Limitation Act 1908 be invoked when a specific limitation period is provided elsewhere in the Act?
- Article 164, Limitation Act 1908
- Article 181, Limitation Act 1908
- Order IX Rule 6, Code of Civil Procedure 1908
- Order IX Rule 13, Code of Civil Procedure 1908
- Order XVII Rule 2, Code of Civil Procedure 1908
ORDER
An ex parte decree was passed against the appellant on 11-1-1996, when he failed to appear on the date fixed for hearing, by the Senior Civil Judge, Kohat. Thereafter, the appellant/Company remained silent for a long period. The appellant/Company, however, filed an application for setting aside the ex parte decree on 1C-1-1997 when its accounts, at Islamabad, were attached.
2. Alongwith the said application the appellant/Company also filed an application for staying the execution proceedings till the decision of the said application.
3. The respondent/plaintiff vehemently resisted the application. It was on 20-5-1997 that the application for setting aside the ex pane decree was dismissed. The execution of the decree was enforced and the appellant/Company was made to deposit the decretal amount in full to be paid to the respondent/plaintiff.
4. The appellant filed an appeal against the order of the Senior Civil Judge, Kohat, dated 20-5-1997 in the Court of Additional District Judge, Kohat on 4-6-1997. The Additional District Judge vide his order, dated 13-6-1998 returned the appeal to the appellant/Company on the grounds that he had no pecuniary jurisdiction to entertain the appeal and that the same be presented in the proper forum. Hence the present appeal.
5. Arguments of the learned counsel for the appellant/Company heard Record of the case perused.
6. A perusal of the record would reveal that the ex parte decree was passed on 11-11-1996 whereas the application for setting aside the same was filed on 16-1-1997, much beyond the period of limitation provided by Article 164 of the Limitation Act, 1908 which is to the following effect:-- "164. By a defendant for an order to set aside aThirty days decree passed ex parte.
The date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree."
5. The learned counsel for the appellant/Company submitted that since his case does not fall under Order 9, Rule 6, C.P.C. And that his case is covered under Order 17, Rule 2, C.P.C. Therefore, the period of limitation for setting aside the ex pane decree would be 3 years under Article 181 of the Limitation Act, 1908. In support of his contention he has placed reliance on a case reported as Messrs Rehman's Weaving Factory (Regd.) Bahawalnagar v. Industrial Development Bank of Pakistan PLD 1981 SC 21. It was held:----- "O. IX, Rr. 6 and 13 read with Limitation Act (IX of 1908), Arts. 164 & 181---Ex parte decree, setting aside of---Limitation---Any cause shown for non-appearance at first hearing, whether non-service of summons, or any other sufficient cause, e.g. Accident or act of God----Article 164 applies to such case and Limitation commences from date of knowledge of decree (when summons not duly served) otherwise from date of decree---Application for setting aside ex parte decree not covered by Art.164---Governed by residuary Art.181 giving period of Limitation as three years from accrual of right to apply---Ex parte decree passed on a date after initial service of summons, on fresh hearing after return of records from High Court, and defendants having no notice of date of hearing when such decree passed---Application for setting aside ex parte decree made within three years of ex parte decree as also from date of knowledge of decree, held within prescribed limitation period."
6. In short, according to the learned counsel for the appellant, Article 181 (3 years and not Article 164 (30 days) of Limitation Act, 1908 would apply to his case and that the Senior Civil Judge, Kohat was not justified in rejecting his petition for setting aside the ex pane decree. He further stated that the Additional District Judge also failed to appreciate his point of view and haphazardly returned his appeal. He accordingly prayed that this appeal be accepted and the ex parte decree passed against him be set aside.
7. I am afraid the contention of the learned counsel for the appellant is absolutely incorrect/misconceived and frivolous. Article 181 of the Limitation Act, 1908 would apply to those cases only where no specific time has been prescribed elsewhere in the Limitation Act. In the case in hand the period of Limitation for setting aside the ex parte decree has been specifically given in Article 164 of the Limitation Act, 1908, therefore, the application for setting aside the said ex parte decree was required to be filed within a period of 30 days.
8. Since the petition for setting aside the ex parte decree was presented before the Senior Civil Judge, Kohat after a period of one year, therefore, the same was hopelessly barred by time and rightly rejected by the Senior Civil A Judge.
9. The order of the Senior Civil judge as well as the Additional District Judge are neither arbitrary nor perverse, therefore, the appeal is without any merit and is accordingly dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.