' Brief facts of the case are that respondents Nos.1 to 8 on 3-5-1994 filed a declaratory suit against the petitioners and respondents Nos.9 and 10. During the progress of this suit on 6-5-1996, in the presence of the petitioners, this suit was dismissed for non-prosecution on account of absence of the plaintiffs. An application was filed by the respondents/plaintiffs for its restoration. The same was contested by the petitioners and the same was ultimately allowed vide order, dated 15-2-2001 by the learned counsel trial Court and in the presence of the learned counsel for the petitioners the case was adjourned for plaintiffs' evidence for 10-3-2001. On 10-3-2001,, learned counsel for the parties were in attendance but the case was adjourned for 26-3-2001 on account of the fact that the learned Presiding Officer was on leave. On 26-3-2001, learned counsel for the plaintiffs along with the witnesses was in attendance but nobody entered appearance on behalf of the petitioners, therefore, the case was kept in waiting. On a second call also since nobody turned up on behalf of the petitioner, ex parte proceedings were ordered against the petitioners at 1-50 p.m. And the case was adjourned after recording evidence of one witness for 12-4-2001. The evidence of the respondents/plaintiffs was recorded and ultimately vide judgment and decree dated 23-1-2002, decreed the suit filed by the respondents/ plaintiffs.
2. The petitioners filed an application under Order IX, rule 13, C.P.C. On 26-4-2002 for setting aside ex parte proceedings dated 26-3-2001 and ex parte decree, dated 23-1-2002. This application was dismissed by the learned trial Court vide order dated 19-5-2003. An appeal was filed by the petitioners, which too was dismissed vide order, dated 25-6-2004. All these orders are being assailed through the instant civil revision.
3. Learned counsel for the petitioners contends that both the Courts below have dismissed the application of the petitioners on the sole ground of it being barred by time. Whereas, limitation in such a case is three years under Article 181 of the Limitation Act. Relies on PLD 1981 SC 21.
4. It is next argued that petitioner had not only prayed for setting aside of the ex parte decree, dated 23-1-2-2002 but had also prayed for setting aside ex parte proceedings dated 26-3-2001, for which, since no period of limitation is prescribed, residuary Article 181 of the Limitation Act shall be attracted and the period for filing such an application would be three years.
5. I have considered the argument of the learned counsel for the petitioners.
6. Ex parte proceedings against a defendant are taken under Order IX, rule 6, C.P.C. And a remedy against such order is provided under rule 7. Limitation Act does not provide any limitation for filing an application under rule 7. As a matter of fact rule 7 itself governs the period during which an application for setting aside the ex parte proceedings can be moved. The said rule is reproduced for ready reference:-- "'Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.---Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing appears and assigns good cause for his previous non- appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."
' According to this rule an application can only be filed by a defendant when the case is adjourned ex parte and he files an application "at or before such hearing". It means that if this stage is crossed and an ex parte decree is passed, then the defendant is precluded from challenging an order passed under rule 6 of Order IX, C.P.C. Before the same Court. Therefore, the prayer made by the petitioners in their application under Order IX, rule 13, C.P.C. For setting aside ex parte proceedings dated 26-3-2001 was not maintainable. For getting an ex parte decree set aside, the defendant has an option of two remedies; one by way of filing an application under Order IX, rule 13, C.P.C. Or by filing an appeal under section 96. For filing an application under Order IX, rule 13, C.P.C. Article 164 of the Limitation Act governs period of limitation. The said Article provides a period of 30 days for filing an application for setting aside ex parte decrees. This article is also divisible in two parts; first part postulates that the period of limitation is 30 days from the date of decree and the second part provides that if summons are not duly served then from the date of knowledge the period of 30 days shall be computed. Petitioner's case is not that summons were not served upon him. He was being duly represented by his counsel, therefore, his case would fall under first part of Article 164 of the Limitation Act. In the instant case ex pane decree was passed on 23-1-2002, while the application for setting aside ex parte decree was passed on 26-4-2002. It is also to be noted that the suit filed by the respondents was restored on 15-2-2001 and for over a period of one year the petitioners never bothered to check the fate of the case. This attitude also speaks volume about the bona fide of the petitioners, for which there is no explanation in their application filed under Order IX, rule 13, C.P.C.
7. Case relied upon by the learned counsel for the petitioners is PLD 1981 SC 21 is not applicable to the instant case. As already observed, Article 164 of the Limitation Act is divisible in two parts. The petitioner's case falls in the first part, while, the referred judgment is related to second part. Their Lordships in the Supreme Court had dilated upon the word "summons" used in Article 164 of the Limitation Act, so as to include some notices required to be issued in certain eventualities. In this view of the matter, the referred law does not advance the case of the petitioners.
8. Coming to the merits of the application the ground taken by the petitioners for setting aside ex parte decree is that the petitioners had no knowledge of the date i,e, 15-2-2001, on which the suit filed by the respondents was restored by the learned trial Court nor they were present in Court. It is further pleaded that their learned counsel did not intimate them regarding the restoration of the suit. Therefore, they could not appear and the decree is liable to be set aside. Learned counsel for the petitioners has however, tried to argue that even the learned counsel for the petitioners was not present in Court on 15-2-2001 when suit filed by the respondents was restored. I have gone through the order-sheet placed on record. The order, dated 15-2-2001 clearly indicates that the counsel for the petitioners was in attendance. The petitioners have, also not so pleaded in' their application that their learned counsel was not in attendance on 15-2-2001. Therefore, lapse, if any, is attributable to the learned counsel for the petitioners and not to the Court or the plaintiffs, therefore, there is no sufficient cause for setting aside the ex parte decree against the petitioners.
9. Learned counsel for the petitioners has next tried to challenge the merits of the ex parte judgment dated 23-1-2002.
10. According to law a defendant against whom an ex parte decree is passed is provided with two remedies; one by way of filing an application under Order IX, rule 13, C.P.C. And the other by way of challenging such a decree through an appeal under section 96, C.P.C. The limitation of the Court attending an application under Order IX, rule 13, C.P.C. Is that such ex parte decree can only be set aside on showing sufficient cause for non-appearance or on account of non-service of summons and no further material is to be looked into for setting aside such a decree but if a defendant chooses to file an appeal under section 96, C.P.C. Against such a decree then the entire case reopens in appeal, even all the interim orders including the one passed under Order IX, rule 6, C.P.C.
Could also be challenged and examined under section 105, C.P.C. And the merits of the ex parte judgment could also be examined by the appellate Court.
11. In this view of the matter, the petitioner is precluded from challenging the merits of the ex parte decree dated 23-1-2002.
12. For what has been stated above I find no merit in this petition and the same is accordingly dismissed.