It is settled law that an application filed underOrder IX Rule 13 CPC the applicable Article to govern the limitation under which the application for recalling of the order is made, is Article 164 ibid in which the period, as observed hereinabove, is 30 days from the date of the decree or the knowledge of the same.

 Under Order XXXVII Rule 4 CPC after the decree is passed the Court under special circumstances can set aside the same and also stay or set aside the execution if it seems reasonable to the Court to do so provided there are special circumstances showed to the satisfaction of the Court; in parallel ex parte judgment and decree may also be recalled or set aside under Order IX Rule 13 CPC. In a normal course of event a suit which is under Order XXXVII CPC under the referred provision of law a judgment and decree is to be set aside where the applicant shows to the satisfaction of the Court that summons were not duly served or that he was prevented by any sufficient cause from appearing when the suit was called for hearing. It is settled law that an application filed underOrder IX Rule 13 CPC the applicable Article to govern the limitation under which the application for recalling of the order is made, is Article 164 ibid in which the period, as observed hereinabove, is 30 days from the date of the decree or the knowledge of the same. Whereas for application under Order XXXVII Rule 4 CPC no period of limitation is provided under the Act and where such is the case the governing Article is 181 of Schedule-I to the Act which provides that where no specific period for limitation is provided for any application then the same shall apply and the period of limitation shall be three years.

Whether an application for setting aside ex parte judgment and decree is to be treated as one under Order IX Rule 13 CPC or Order XXXVII Rule 4 CPC.?

It is trite law that where there is a special provision and general provision for some action to be taken then the special shall prevail over the general. This principal has been qualified in the context of Order XXXVII CPC by the Courts by observing that where application for leave to defend is allowed and the defendant contest the suit but absent himself and the suit proceeds like a normal suit after recording of evidence then the governing provision of law is Order IX Rule 13 CPC; however, if summons are not properly served or any application for leave to defend is made and ex parte judgment and decree is passed the applicable provision is Order XXXVII Rule 4 CPC.

Writ Petition No.1407 of 2020
Hameed Ullah Vs. Ali Arshad and another