1. ' Applicant Sultan Aziz had filed a suit for declaration and permanent injunction in respect of property bearing No,K-139, Haji Fareed Goth, Golimar No,2, Karachi in the Court of the learned XIXth Civil Judge, Karachi. The respondent failed to appear on 30-3-1981 which was a date fixed by the Court for hearing of the case after the learned Civil Judge had ordered that summons be served on the respondent by substituted service and by publication of the same in the Newspaper.
2. Consequently, the learned Civil Judge proceeded ex parte and passed judgment after taking ex parte proof on 23-12-1981 and a decree was framed accordingly on 2-2-1982.
3. ' On 20-4-1982, respondent Murad Ali filed, application under Order IX, Rule 13, C.P.C. Seeking to get the ex parte decree set (aside on the ground that no summons had ever been served on him either at his residence or at his Rationshop and the exparte decree passed against him had been managed by the applicant with ulterior motive and it was on 12-4-1982 that the respondent for the first time came to know about the ex parte decree after a certified copy of the decree had been filed by the applicant in the Court of A.C.M. Gulbahar, Karachi where some other litigation had been pending between the parties. This application was rejected by the learned Civil Judge.
4. ' The respondent then filed appeal before the learned Vth Additional District Judge, Karachi which was allowed and the order of the learned Civil Judge was set aside and the case remanded to the learned Civil Judge for fresh disposal. It is this judgment which has now been impugned in the revision application.
5. ' I have heard Mr.Zahid Marghoob, learned counsel for the Applicant and Mr.Abdul Latif Channa learned counsel for the Respondent.
6. The only contention raised by Mr. Zahid Marghoob before this Court has been that the application filed by the respondent under Order IX, Rule 13, C.P.C. Was time-barred and therefore, the learned Appellate Court could not have decided the appeal in favour of the Respondent.
7. ' I find this argument to be completely without force. It is clearly evident from the appellate judgment that the learned Civil Judge first issued summons to the respondent for 27-5-1981 which could not be served on him and was returned unserved by the Bailiff f 'the Court. Another summons issued for 20-7-1981 was also Admittedly, nor served on the respondent. Thereafter, it appears, he applicant filed an application under Order V, Rule 20,C.P.C. For {{PAGE CUT}} service of summons through publication which was forthwith allo on 5-11-1981 by the learned Civil Judge as is evident from the followi order passed by her: "Defendant be served by way of Publication as well as pastil on the premises of the outer door of defendant and Regd. A. Also."
8. ' This Order which evidently appears to have been mechanically pas-by the learned Civil Judge clearly appears to be erroneous since proper attempt had been made to serve summons on the respond in the manner as provided by Order V, Rule 10 C.P.C. Even complia with Rule 10-A of Order V, C.P.C. Simultaneously requiring send of summons by registered post admittedly, was not made by learned Civil Judge. Under such circumstances, when the respond appeared and pleaded before the Court that the summons had been served on him and he had no previous knowledge of the dec passed by the learned Civil Court, all that was required to be di was to set aside the ex parte decree and dispose of the suit merits. However, Mr. Zahid Marghoob, learned counsel for the applic has argued that the applicant had succeeded in establishing bef the learned trial Court and the appellate Court that the respond had knowledge in respect of the ex parte decree much prior 12-4-1982 as claimed by him and therefore, his application uns Order IX, Rule 13, C.P.C. Before the learned trial Court was bar by time and consequently the learned appellate Court was in erl while- setting aside the ex parte decree and allowing the respond( to defend the suit on merits.
9. ' It may be pointed out that Article 164 of the Limitation provides for a period of thirty days for a defendant to make application for an order to set aside an ex parte decree and st period is to be reckoned from the date of the decree or where summons was not duly served, when the applicant.
10. Had knowledge the decree. It is not disputed that an application under Order Rule 13, C.P.C. Is to be governed by Article 164 of the Limitat Act. The correct interpretation of Article 164 would be, that wt there has been due service of summons on the defendant, time wo run from the date of the decree otherwise it would run from the d when the defendant first had knowledge about the decree.
11. Consequer in a case where the defendant makes appearance in response ti summons issued by the Court, but subsequently fails to appear application for setting aside ex parte decree has to be filed wit thirty, days from the date of the decree and not from the date of knowledge of such decree. However, where the summons was duly served on the defendant, an application for setting aside an parte decree would then be governed by the second part of Art 164 of the Limitation Act and the period of limitation would run f the date of knowledge in respect of the ex parte decree. It has been denied 1?y Mr. Zahid Marghoob that this case is covered by second part of Article 164 but what the learned counsel has dispu is, that the date of knowledge acquired by the respondent in rest of the decree in the suit was not 12:4-1982 as claimed by him the same was much prior to that as the applicant had himself infori the respondent about the decree in the suit. However, I do not much force in this argument because when the learned counsel asked to point out a single instance to support his contention only referred to the counter-affidavit of the respondent, -5-1982 which fails to support his contention. Knowledge does no rely mean that a decree has been passed by some Court against defendant in some suit but the same means that a particula B cree has been passed against him by a particular Court in a partilar suit and in favour of a particular party-.
12. Such knowledg Fording to the respondent was acquired by him for the first time 12-4-1982. The affidavit relied upon by Mr.Zahid Marghoob fo purpose of rebuttal or the other documents referred to therein, pies of which have been filed by the applicant along with this vision, however, fail to establish that the respondent had sufficient twledge in respect of the decree prior to 12-4-1982.
13. Consequently, learned appellate Court had to accept the plea taken by theC ,pondent in his application under Order IX, Rule 13,C.P.C. I t is accepted then the application 'filed by the respondent on 4-1982 was not time-barred and the appeal filed by the respondent rightly accepted by the learned appellate Court. Since Mr.Zahid ghoob has failed to convince me with his argument I do not find t the Judgment of the learned appellate Court is open to exception.
14. ' For the aforesaid reasons, I did not find force in this revision the same was therefore dismissed by a short order, dated 4-5-1987. D - parties are left to bear their own costs.