1. MUHAMMAD AKRAM, J. This is a petition for special leave from the order dated 25th of February 1978 passed by a learned Judge of the Lahore High Court at Lahore whereby he dismissed in limine the two miscellaneous petitions filed by the petitioners herein against the respondent.
2. In brief the relevant facts are that one Nazar Muhammad Uppal, predecessor of the petitioners herein, was a tenant under the respondent in respect of a shop situated in the Y. M. C. A. Building, The Mall, Lahore. He died sometimes in the year 1961. After his death, on the 25th of July 1962, the respondent filed an application against the petitioners, as the legal representatives of the original tenant, under section 13 of the Urban Rent Restriction Ordinance, 1969 for their ejectment from the premises on the ground of default in the payment of rent and also for subletting the premises. In this petition petitioners Nos. 3 to 7, daughters and son of late Nazar Mohammad Uppal, were sued as minors through their mother Mst. Afzal Begum petitioner as their guardian. Eventually on the 2nd of March 1963, the Rent Controller, Lahore, dismissed the petition on the merits finding in favour of the petitioners on all the issues. The order was substantially affirmed on appeal of the respondent rejected by the District Judge on the 29th of April 1965.
3. On the 30th of June 1965 the respondent filed a second appeal (S. A. O. No. 381 of 1965) from the order in the High Court at Lahore. It appears that two separate notices of this appeal were sent by the High Court to Mst. Afzal Begum petitioner No. 1 for self as well as the guardian ad liters of respondents Nos. 3 to 7 and Mst. Hajran Begum, respondent No. 2 on their address at House No. 33- D, Kucha Haji Elahi Bakhsh, inside Lohari Gate, Lahore. But the process server reported that the addressees were not available at their given address. Afterwards on the 6th of April 1966, the respondent made an application under rule 20 of Order V read with section 151 of the Code of Civil Procedure to the effect that it has not been able to find out the where about of the petitioners herein in spite of the best efforts made by it and even their relatives have refused to supply any information on the point, and that it was not possible to serve the petitioners in the ordinary course.
4. It was therefore, prayed that they may be ordered to be served by substituted service on them in the appeal filed against them. On this on the 8th of April 1966, the High Court accepted the application and ordered that the service may be effected on the petitioners herein (the respondents in the appeal) by publication of the notice in an Urdu newspaper. In pursuance to this order a notice to that effect was published against them at their last known address in the daily Mashriq dated 17th of August 1970 for the 9th of September 1970 (actual). But on this date of hearing neither the petitioners nor their learned counsel appeared and ex parte proceedings were ordered against the major respondents Nos. 1 and 2 in the appeal and as to the minor respondents 3 to 7, the Court directed that suitable steps may be taken for the appointment of their Court guardian. In obedience to this order on an application moved by the appellant in the appeal, on the 26th of October 1970 the Court appointed Mr. Maula Bakhsh Khizar Tamimi, Advocate, as guardian ad !Item for the minor respondents Nos. 3 to 7 in the appeal.
5. In these circumstances the appeal of the respondent was put up for hearing before a learned Judge of the Lahore High Court at Lahore on the 9th of April 1974. Neither respondents Nos. 1 and 2 nor their counsel appeared at the hearing in the appeal and the High Court after hearing the appellant and the guardian ad item for the minor respondents Nos. 3 to 7, accepted the appeal and ordered the ejectment of the respondents (petitioners herein) on both the grounds. In that connection the Court observed that on the date of the filing of the petition for ejectment the tenant was in arrears in the payment of the due rent amounting to Rs. 1,584. But it was argued that the Secretary of the respondent had failed to accept the rent when it was tendered to him from time to time. However, according to the High Court the tender was made only in respect of the rent due for the period after the death of the original tenant who was himself in default in the payment of the rent due from him to the landlord. Moreover, from the admission made on behalf of the petitioners at the trial before the Rent Controller to the effect that the shop in question was at first occupied by the Board, then by one Mohyud Din and lastly by a person dealing in children's cycles etc., the High Court formed the opinion that it had been further leased out to them and that they were the sub- tenants in the shop. The High Court, therefore, in accepting the appeal ex parte against the appellants herein directed their ejectment from the premises.
6. In order to complete the narration it may be stated here that during the pendency of the appeal before the High Court, Mst. Hajran Begum, respondent No. 2, mother of the original tenant, had also died on the 13th of September 1968. But this fact remained unnoticed by the appellant and no application whatever was made in the appeal to bring her legal representa--tives on the record.
7. The case of the petitioners was that they bad no knowledge and remained all along ignorant about the ejectment order that was thus passed ex parte in favour of the respondent by the High Court. It was only after the 7th of April 1977 when the respondent took out the execution proceedings against them for their ejectment from the shop in question that they learnt about it when the bailiff appeared at the shop with the warrant to actually evict them.
8. Therefore, on the 23rd of February 1978, the petitioners herein, including Sh. Inam Elahi petitioner No. 2, claiming as a legal representative of Mst. Hajran Begum deceased, filed the two miscellaneous applications No. 1124-C of 1978 under rule 21 of Order XLI of the Code of Civil Procedure for setting aside the ex parte order dated 9th of April 1974 passed against them and for a rehearing of the appeal disposed of ex parte by the High Court and No. 11.26-C of 1978 under rule 9 of Order XXII read with section 151 of the Code to contend that the appeal of the respondent had already abated as a whole by virtue of the death of Mst. Hajran Begum deceased and the failure of the respondent to implead her legal representatives within time and consequently the order of their ejectment dated 9th of April 1975 passed by the High Court was ab initio void and illegal.
9. But, as already stated above, a learned Judge of the Lahore High Court at Lahore dismissed in limine both the applications by a single order passed on the 25th of February 1978. Hence; this petition for special leave to appeal from it.
10. We have heard the learned counsel for the petitioners in this petition at great length. In the High Court the petitioners had applied for setting aside the ex parte order passed in appeal on the three main grounds- Firstly, that they were not duly served in the appeal ; secondly, that two of the respondents, namely, Mst. Parveen Akhtar and Mst. Tasneem Akhtar respondents Nos. 3 and 4 in the appeal had attained majority by the time the appeal came up for hearing and consequently the proceedings taken against them without removing their guardian on their attaining majority, were without lawful authority and had no legal effect ; Thirdly, that Inam Elahi, a legal representative of Mst. Hajran 'Begum deceased who bad died before the date of hearing of the appeal was not brought on record and thereby the appeal itself had abated as a whole and could not have been proceeded with.
11. But the High Court repelled these contentions and in its impugned order dated 25-2-1 78 remarked that the only reason for the condo nation of the delay in the two miscellaneous applications urged at the bar was that the execution application had been made by the respondent after almost three years and that the petitioners had all along remained ignorant about the ejectment order and had learnt about it only on 14-2-1978. In this connection however, the High Court observed that the execution application was in fact put in Court by the respondent on the 7th of April 1977 and that it was rather difficult to believe that the petitioners bad all along remained ignorant and did not come to know about the ex parte ejectment order passed against them for almost four long years.
12. In the opinion of the Court the period of limitation for the application for setting aside of the ex parte order passed in the appeal was 30 days only under Article 169 of the Limitation Act. The petitioners were served by citation in the appeal and a case was made out to the satisfaction of the Court for effecting the service in the appeal on them by citation in accordance with the provisions contained in rule 20 of Order V of the Code. The substituted service thus effected on the petitioners was due service and as such the limitation for the application for rehearing of the appeal started from the date of the passing of the final order in appeal. It was, therefore, barred by time and no case was made out for condonation of the delay. In the opinion of the learned Single Judge the death of Mst. Hajran Begum during the pendency of the appeal of the respondent in the year 1968 was hardly of any consequence, since her legal representatives (petitioners Nos. 3 to 7) were already on the record and as such the question about the abatement of the appeal did not arise. In this connection the learned Judge in Chambers remarked that Inam Elahi petitioner, is a son of pre-deceased daughter of Mst. Hajran Begum deceased and as such he was not entitled to succeed to her estate in preference to respondents 3 to 7. He did not find any force in the contention that Mst. Parveen Akhtar and Tasneem Akhtar petitioners had already attained majority when the impugned order was passed in the appeal. He observed that the proceedings started before the Rent Controller in 1962, when Mst. Parveen Akhtar was allegedly about 21 years in age according to School certificate filed in the High Court.She was proceeded against as a minor from the very beginning of the ejectment proceedings before Rent Controller and was treated as such during the appeal also. In conclusion therefore, the High Court dismissed in limine the two petitions before it on 25-2-1978.
13. In this petition for special leave to appeal from the impugned order passed by the High Court the learned counsel for the petitioners addressed his arguments at great length before res. He admitted that at first the notices in the appeal filed by the respondent in the High Court were sent to Mst. Afzal Begum and Mst. Hajran Begum at their given addresses at House No. 33-D, Kucha Haji Elahr Bakhsh, inside Lohari Gate, Lahore. The process server however, reported that the addressees were not available at their given addresses. It was asserted on behalf of the petitioners that even before the appeal was actually filed in the High Court the respondents had already shifted to a new place of their residence and changed their addresses. At any rate, to the knowledge of the respondent they were at the time carrying on their business as before in the demised premises in a part of the Y. M. C. A. Building. But no attempt was at all made to effect service on them at their new residential address or even at their known place of business. In fact, according to the learned counsel the respondent had willfully managed to suppress the service of the notices in the appeal on the petitioners and had obtained the order for effecting substituted service on them by misrepresenta--tion to the Court and by deceit. In these circumstances according to the learned counsel for the petitioners, they were not "duly served" in the appeal and as such their application to set aside the ex parte order of their ejectment made within 30 days of their knowledge of the same, was within time under Article 169 of the Limitation Act. The learned counsel further submitted that at any rate the appeal of the respondent filed in the High Court had itself abated in toto on the death of Mst. Hajran Begum respondent in the absence of her legal representatives brought on the record. Moreover, according to the learned counsel some of the petitioners had already attained majority ,and therefore, they were not effectively represented by their guardian ad item appointed by the High Court during their minority and the impugned order of their ejectment thus procured in the appeal did not bind them.
14. 1t may be seen that the respondent filed its second appeal in the High Court on 30-6-1965 against the appellate order dated 29-4-1965 passed by the District Judge, Lahore. At first the notices of the appeal in the High Court were issued to them at their given addresses. But those were returned unserved with the report made by the process server to the effect that the addressees were not available on their address. In this connection according to their learned counsel also they were admittedly not available at their given address. He, submitted that in the beginning of June 1965 they had already shifted to take up their residence in a house situated in a different locality on Rajgarh Road, Lahore. In support of this contention he attempted to rely on an extract produced from a deed-writer's register about a rent deed having been executed by Javid Iqbal Uppal petitioner No. 7 in favour of the landlord of that house in April 1965. It purports to show that the tenancy was to be for a period of eleven months commencing from 1-5-1965, although at the same time at another place in the body of the rent deed allegedly executed in April 1965 it is also stated that as per oral agreement he has already taken possession of the demised premises from the landlord.
15. In this connection b: fore proceeding further it is worthwhile to mention here that rule 11 of Order VIII (Punjab Amendment) of the Code of Civil Procedure expressly lays down that every party who appears in any suit or other proceedings shall file in Court a statement stating his address for service and if he fails to do so he shall be liable to have his defence struck out and to be placed in a position as if he had not defended. It is a mandatory provision of the law. It is further laid down in rule 12 of Order VIII read with rule 24 of Order VII of the Code (Punjab Amendment) that any party who desires to change the address for service given by him as aforesaid shall file a verified petition and the Court may direct the amendment of the record accordingly, with notice to the opposite party. In the same context rule 22 of Order VII further provides for service by affixation of a copy of notice or process on the outer door of the house of a party at his given address, even though he or anybody else to accept service on his behalf is not available there. The service thus effected in accordance with the rule is deemed to be as effectual as if the notice has been personally served.
16. Even rule 20(1) of Order V of the Code also inter alia provides for service by affixation of a copy of the summons in some conspicuous place in the Court house and also upon some conspicuous part of the house in which the defendant is known to have last resided.
17. In this connection it is evident from the record that the respondent ha filed his first appeal against the petitioners on 8-4-1964 and it remained pending till 29-4-1965 when it was eventually dismissed by the District Judge, Lahore. Inspite of this the petitioners, who were the respondents in the appeal before the District Judge, allowed their old address to stand on the record and did not intimate to the Court about their actual or contemplated change (as alleged by them) in their address during the pendency of the appeal. For this they are themselves to be blamed. In the circumstances the respondent seems to have acted in perfect good faith in filing the appeal against them at their old given address and they could not be blamed for their alleged failure to file their new address in the appeal if indeed they had in fact abandoned their last known place of residence. According to the respondent's application dated 6-4-1966 made to the High Court under Order V, rule 20 read with section 151 of the Code the notices issued at the petitioners' address were returned unserved with the reports that they could not be traced at the given address and that in spite of its best efforts their whereabouts could not be found. In these circumstances the Court had ordered that substituted service may be effected on them in the appeal. Indeed, in the circumstances the Court could have as well resorted to the provisions laid down in rule 22 of Order VII of the Code and readily effected the service on the petitioners by affixation of the notices on the outer door of the house at their given address. But the Court found it more advisable in its discretion to adopt a better and comparatively less suspicious mode by directing that substituted service may be effected on them by publication of the notices in the Daily Mashriq in accordance with the provisions contained in sub-rule (1) of rule 20 of Order V of the Code.
18. In this connection sub-rule (2) of rule 20 of Order V of the Code expressly lays down that such a service substituted by order of the Court shall B be as effectual as if it had been made on the defendant personally. In dilating upon this provision in the Full Bench cass of Ram Bharose v.
19. Ganga Singh (AIR 1931 AII.727), Sulaiman Acting C. J. In his separate judgment observed that :- "The procedure for the service of summons is laid down in Order V, Civil Procedure Code. Where the service is not personal, it may be substituted. Under Order V, rule 20(2) service substituted by order of the Court is as effectual as if it had been made on the defendant personally. But as at the time when the substituted service is ordered the proceedings are ex parte, it would be open to the defendant when he appears later to challenge the propriety of the order and ask the Court to re- examine its fitness. If in view of any additional circum--stances which he is able to place before the Court he can satisfy it that he was not keeping out of the way and that there was no sufficient reason why the summons could not be served in the ordinary way or that the manner of service decided upon was not fair and just to him, he would have discharged the burden of showing that there was no due service."
20. If I may say so in all humility and with due deference that it was right observed above that where substituted service has been effected on the defendant under this rule and ex parse decree was passed against the defendant, thereby the defendant is not precluded from afterwards showing to the satisfaction of the Court that order for the substituted service was improperly procured, in the absence of the defendant, at the behest of the plaintiff on the one sided representations made by him at the time and that he was not duly served in the matter.
21. The machinery for setting aside of the exparte decree is provided in rule 13 of Order IX of the Code.
22. It lays down that in any case in which decree is passed ex parte against a defendant be may apply to the Court by which the decree was passed for an order to set it aside ; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him. Likewise rule 21 of Order XLI of the Code lays down that where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal ; and, if he satisfies the Court that the notice wa3 not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall rehear the appeal.
23. However, the necessary application in this behalf has to be made within the period of limitation prescribed under Article 164 of the Limitation Act to set aside a decree passed ex parte on the original aside and under Article 169 thereof for re-hearing of an appeal heard ex parte. According to both these Articles the period of limitation prescribed is thirty days only from the date of the original or appellate decree or where the summons or the notice of the appeal, according as the case may be, was not "duly served", when the applicant had knowledge of the decree. In other words under these provisions when there is due service of the summons in the suit or notice of the appeal the period of limitation prescribed for the application to set aside: the ex parte decree or for rehearing of the appeal heard ex parse, shall be computed from the date of the decree in question.
24. In case however, the; summons or notice of the appeal was not "duly served" then the limitation commences only when the applicant has knowledge of the decree. It may be seen that under these provisions the time will run from the date of knowledge of the decree only where the summons or the notice of the appeal, according as the case may be, is not duly served. In case however, summons or notice has been duly served then the date of knowledge of the decree by the applicant is immaterial and period of limitation starts running from the date of the decree itself.
25. The term "duly served" used in the context of Articles 164 and 169 is not defined in the Limitation Act.
26. As already Stated above sub-rule (2) of rule 20 of Order V of Code itself lays down that service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. In this connection it was laid down in Dittu Ram v. Nawab (AIR 1925 Lab. 634), that in the case of substituted service, a summons is duly served for the purpose of Article 164 of the Limitation Act even though it did not in fact come to the knowledge of the defendant. This case was cited with approval in Hans Raj v. Narain Singh and another (AIR 1931 Lah. 118). Similarly in some of the reported cases from the High Court of Calcutta and the Court of the Judicial Commis--sioner of Peshawar substituted service as such if effected in accordance with the requirement of the rule was taken as "due service" within the meanings of Article 164 of the Limitation Act. Even in the reported case from the Madras High Court in K. B. Narasimha Chettiar v. K P. Balakrishna Chetty (AIR 1927 Mad. 487), Madhovan Nair, J. In relying on Dittu Ram v. Nawab, held that if the substituted service effected in accordance with the requirements of the provisions of rule 20 of Order V of the Code, the summons is duly served on the defendant within the meanings of Article 164 of the Limitation Act even though it did not in fact come to the defendant's knowledge and the time for an application to set aside the decree passed ex parte shall run from the date of the decree. But this view was departed from in the later decisions of the Madras High Court and it was held that substituted service cannot be said to be due service where it did not achieve its object in bringing the claim of the plaintiff to the knowledge of the defendant. But in Vitta Venkatachalarn and another v. Sivapurm Subbaya (AIR 1928 Mad. 655), Srinivasa Ayyangar, J. In dissenting from the above mentioned case of K. B. Narasimha Chettiar v. K. P. Balakrishna Chettiar, held that substituted service of summons under the Civil Procedure Code is not due service for the purpose of Article 164 of the Limitation Act. In that connection he observed that :- --- it seems to me that the very expression "substituted service" clearly and conclusively indicates that it is not due service, the service that is due to the defendant or that is due according to the provisions of law for the purpose of service. For the purpose of Article 164 substituted service, therefore, could not possibly be regarded as due service."
27. In that connection the learned Judge further observed that the implication seems to be clear that in cases where the summons is duly served on the defendant the presumption may well be that he has knowledge of the decree or at any rate if he does not get knowledge of the decree, it was ascribable only to some fault on his part or on the part of those near about him who ought to have known better. But a Division Bench of the same Court in Shariba Beeby v. Abdul Salam and another (AIR 1928 Mad. 815), pointed out that Srinivasa Ayyangar, J. In Venkatachalam v. Subbayya, in coming to his conclusion did not even advert to the provisions. Contained in sub-rule (2) of rule 20 of Order V of the Code. This case was followed with approval in M. R. A. L. Lakshmanan Chesty v. M.
28. R. A. P. L. Palaniappa Chetty () AIR 1928 Mad. 1052) and it was held that the substituted service amounted to personal service. But in more recent cases a significant departure was made from this view.
29. "I see nothing in the rules to prevent a defendant against whom an ex parte decree has been made from showing, if he can, that he was not duly served in the sense that knowledge of his opponent's claim has not been brought home to him, even though the formalities of substituted service have been carried through. As I understand the matter, due service within the meaning of Articles 164 and 169, Limitation Act and Order IX and Order XLI of the Code is not service which is technically and formally correct as a basis for proceeding ex parte, but service which has really been effective, which had achieved the object of service by bringing the claim against him to the knowledge of the defendant or respondent."
30. This case was followed with approval in S. J. Bashyam Achari v. G. Parthasarathi (AIR 1954 Mad.
31. 195) in which it was held that the substituted service cannot always be deemed to be due service within the meanings of Article 164 of the Limitation Act, or rule 13 of Order IX of Civil Procedure Code and it is only that due service which has been effective and which has achieved the object of service by bringing the claim against him to the knowledge of the defendant or respondent. To the same effect is the pronouncement in Nagapa Chowdry and another v. Rangaswarni Chetti (AIR 1954 Mad. 475) and Gurnanmal v. Greenfield Co. (AIR 1964 Mad. 372).
32. In the Full Bench of Allahabad High Court in Ram Bharose v. Ganga Singh, Mukerji, J. Observed that :- "The object of issuing a summons is to inform the party against whom a suit has been instituted, of the fact, that there is a suit against him, and if he so chooses, he may come .And defend it. If that be the object of a summons, and if, for no fault of his own, a defendant was never put in a position to know that a suit had been instituted against him, whatever steps may have been taken for serving the summons on him, these steps can never be accepted as amounting to "due service".
33. When an order for substituted service is made by a Court, on the representation of a plaintiff; only one side is present before the Court and it acts on the representation of one party. Obviously it should be open to the defendant, when he appears, to show that the method employed was not calculated to effect the purpose, which the Court had in view, namely, informing the defendant of the institution of the suit. If this is so, the Court has to consider, in view of all the circumstances of the case, for example, the place where the defendant was when the summons was issued to him, where and how the summons was served, and so on, in order to see whether there was due service."
34. Similarly in G. Shanmukhi v. Utakur Venkatarami Reddi and another (AIR 1957 Andh. Pra. I) a Full Bench of that Court was of the opinion that substituted service cannot always be deemed to be due service within the meanings of Articles 164 and 169 of the Limitation Act or rule 13 of Order IX or rule 21 of Order XLI of the Code and that there was nothing in these provisions to prevent a defendant against whom an ex parte decree has been made from showing, if he can, that he has not been "duly served" in the sense that knowledge of his opponent's claim has been brought home to him, even though the formalities of substituted service have been carried through. But in that connection the Court further observed that where the rules of service are observed, there would generally be good reason for supposing that the defendant became aware of the institution of the suit, though it does not necessarily follow that he actually did.
35. Eversince, by and large this view appears to have gained ground amongst the Courts under the Indian jurisdiction se much so that now by virtue of an Explanation inserted in the corresponding provisions in Article 123 of the Indian Limitation Act 1973 it has been expressly laid down that for the purposes of the Article substituted service under rule 20 of Order V of the, Code of Civil Procedure shall not be deemed to be due service.
36. Be that as it may, I find that on the facts in this case before us, the learned Judge in Chambers has repelled the contention advanced before him for the petitioner that they had come to know of the ex parte order of ejectment passed against them only after the filing of the execution application by the respondent, for the first time on 14-12-1978. He observed that it was not believable that petitioners did not come to know of the order for almost four years and had no knowledge about it for almost four years. On these findings therefore, he dismissed the application for rehearing of the appeal as barred by time under Article 169 of the Limitation Act. The petitioners failed to establish to the satisfaction of the learned Single Judge that they had knowledge of ex parte ejectment order passed against them within thirty days of their application made for rehearing of the appeal.
37. Thereby they failed to discharge the onus thus resting on them in this behalf in bringing their case within limitation under Article 169 of the Act. It is, therefore, not a fit case for interference by us with this finding of fact in these proceedings.
38. Even otherwise Article 169 of the Limitation Act is not in terms attracted to this case. It may be seen that Article 164 of the Act is applicable to an application by a "defendant" for an order to set aside a "decree" passed ex parte and the prescribed period of limitation of thirty days starts running from the date of the "decree" or, where the "summons" was not duly served, when the applicant has knowledge of the "decree". In the context it seems that this article is limited to suits. Likewise under Article 169 of the Act the limitation for an application for rehearing of an appeal heard ex part is prescribed as thirty days from the date of the "decree" in appeal, or where notice of the appeal was not duly served, when the applicant has knowledge: of the "decree". The third column of this article shows that it is limited to an appeal from a decree and it has no application to an appeal heard ex parte from an appellate order to distinguish it from a decree.
39. In Abhoya Charan Basak v. Saroja Sundari Basak (AIR 1915 Cal. 85), a Division Bench of that Court held that the limitation laid down in Article 164 of the Limitation Act was applicable to the case of a "defendant" only and therefore, it has no application in the case of an application for revocation of the probate of a will. Similarly, in Hindustan Bank Ltd., v. Mehraj Din (AIR 1920 Lah. 51) a Division Bench of the then Lahore High Court was of the opinion that a payment order made ex parte under section 150, Companies Act did not amount to a decree within the meanings of proviso (a) clause
(2) of section 2 of the Civil Procedure Code. As Article 164 of the Limitation Act had no application to an application for setting aside such an order, the Court instead applied the residuary provisions in Article 181 of the Limitation Act to the case. In Kanji Shivji v. Vasanji Shivji & Co. (AIR 1929 Born. 386) an order was made under Order XXI, rule 50(2) of the Code granting leave to execute a decree against any person on the ground that he was a partner. In that connection it was held that the order did not amount to a decree and therefore, Article 164 of the Limitation Act was not applicable.
40. In another reported case in W. H. Lawrence v. Dewan Singh (AIR 1933 Rang. 264) the Court was of the opinion that a decision given under section 152 of the Code of Civil Procedure granting an application for amendment of a decree was an order and not a decree and hence an application to set aside such the order was governed by Article 181 and not by Article 164 of the Limitation Act.
41. Similarly, in Noor Muhammad and others v. The Rehabilitation Commissioner, Karachi (P D 1959 Kar.
42. 19) the High Court of West Pakistan (Karachi) held that as the wording of Article 169 of the Limitation Act was applicable only where one has a decree and the proper Article to apply, in the case of an application for re-hearing of an appeal, decided ex parte (from an order refusing an interim injunction) was the residuary Article 181 and not Article 169, and a application for re-hearing presented within three years of the ex parte order was in time.
43. In the light of the above discussion I am of the considered opinion that the ejectment order dated 9th of April 1974 was passed ex pane by the High Court in appeal under section 15(4) of the Urban Rent Restriction Ordinance 1959. It was not a decree as such and therefore, Article 169 of the Limitation Act was not at all applicable to the application made by the petitioners to set aside the ex parte order and rehearing of the appeal. It was governed by the residuary Article 181 of the Limitation Act and the application for rehearing of the appeal could have been made within three years. The cause of action had accrued to the petitioners on the passing of the ex parte ejectment order on 9-4-1974 and therefore, the application filed by them in the High Court on the 23rd of February 1978 for rehearing of the appeal was clearly barred by time.
44. In coming to this conclusion however, I am not unmindful of the provisions contained in section 17 of the Urban Rent Restriction Ordinance 1959. It, inter alia, lays down that every order made under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court. It implies that although an order passed in appeal q under section 15 is not by itself a decree yet for the limited purpose of execution only it shall be treated as if it were a decree of that Court. It does not clothe the ejectment order passed under it with the full effect of a decree for all other purposes, including that of Article 169 of the Limitation Act.
45. In Syed Sarwar Abbas v. Syed Muhammad Taqi Rizvi (1969 SCMR 689) this Courtx observed that by virtue of section 17 of the Urban Rent Restriction Ordinance, the ejectment order passed by the appellate authority has the force of a decree of a civil Court. But these observations were made in the context of the proceedings under section 15 thereof for the execution of the ejectment order.
46. The learned counsel next argued before us that Mst. Hajra Begum had died during the pendency of the appeal but her legal representatives were not brought on the record and thereby the appeal of the respondent had itself abated in toto and was a nullity in the eye of law. But this contention has no force. It appears that Mst. Hajra Begum one of the respondents in the ' appeal before the High Court had died in the year 1968. Petitioners Nos. 3, to 7 herein, her legal representatives, were already on the record. However, the name of Sheikh lnam Ilahi, a son of her predeceased daughter, was no brought on the record as another legal representative of the deceased. In this connection the learned Single Judge was of the opinion that under the Muhammadan Law he being a predeceased daughter's son of Mst. Hajra Begum, was not entitled to succeed to her. But evidently in arriving at this conclusion his attention was not drawn to the provisions contained in section 4 of the Muslim Family Laws Ordinance VIII of 1961.
47. Inspite of this in my opinion, the estate of Mst. Hajra Begum deceased was effectively represented by the remaining respondents 3 to 7 already on the record of the appeal and this failure on the part of the appellant to implead Sh. Inam Ilahi as her legal representative did not result in the abatement of the appeal. In Kunhi Kalanda Boarl v. Kunhipakki and others (AIR 1930 Mad. 69)l a preliminary decree was passed in a suit brought to enforce a mortgage and one of the defendants had died. He left three heirs, one of them being a minor son, and the other two were his grandfather and mother. They were not brought on record as legal representatives before the final decree was passed, though two of them who were adults were already on record. In these circumstances the Court held that the grandfather and mother sufficiently represented the estate and the final decree that was passed and the sale that was held in execution were binding upon the entire estate, including that of the infant son. In Sardar Bahadur Khan and others v. Majid and others (AIR 1938 Pesh. 4) the Court held that the failure to implead all the legal representatives of a deceased defendant does not cause the suit to abate as against him and there is no provision in Order XXII, rule 4 of the Code allowing a suit to abate when an application has been made merely because the application does not include all the legal representatives of the deceased. Similarly in Poonam Chand v. Motilal (AIR 1934 Raj. 287) it was held that the estate of the deceased respondent was sufficiently represented by the two minor sons who were brought on record within time and, therefore, the appeal did not abate by reason of the fact that the third minor son was not brought on record within limitation. At any rate this plea is not at all open to the petitioners in these proceedings arising out of the time barred application made for rehearing of the appeal decided ex parte.
48. As a last resort the learned counsel also attempted to argue before us that Mst. Parveen Akhtar petitioner No. 3 was born an the 9th of April 1948. She had attained majority on the 9th of April, 1959 and as such she could not have been sued as a minor from the very start. He further contended that some of the other respondents bad attained majority during the pendency of these proceedings and they could not have been effectively represented through their guardian aditemafter having attained majority and therefore, the order of ejectment thus passed against them was a nullity. There is hardly any force in these contentions. In this connection we find that no objection was at all raised at any stage of the proceedings before the Rent Controller or in appeal to the effect that Mst. Parveen Akhtar was a major and not a minor. As such the High Court was justified in refusing to entertain this plea in these proceedings. Claus: (5) of rule 3 of Order XXXII, of the Code specifically lays down that a person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree. The effect of this sub-rule is that guardian ad litem appointed under sub-rule (1) does not cease to function automatically on a minor defendant attaining majority. The guardian is to be discharged by the order of the Court and unless he is so discharged he continues to be a guardian validly representing the minor during the suit, appellate or revisional proceedings. (See Ratan Prasad Narwari v. Bridhi Chang Shroof and others (AIR 1939 Pat. 6014) and Umra and others v. Barkat Ali and others (AIR 1928 Lab. 371). In Lanka Sanyasi v. Lanka Yerran Naidu and others (AIR 1928 Mad.
49. 294) the Court observed that no provision has been made in the Civil Procedure Code, in respect of a minor defendant attaining majority. Therefore, the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. If, however, he does not do so and allows the case to proceed as though he was still a minor without bringing to the notice of the Court, the fact of his having attained majority, then he must be deemed to have elected to abide by the judgment oradjudication by the Court with respect to the matters in controversy on the.
50. Basis of the suit at the time.
51. For the foregoing reasons I see no force in this petition which is hereby rejected.