Ex-Parte Under Civil Procedure Code

Ex parte Decree and its remedies || Order 9 Rule 13

In the court of law, wherever there is a right and that right is violated when
the parties have a remedy to exercise on the violating parties.

A legal maxim which defines the above words more accurately is “ubi jus ibi
remedium” which states that where there is a right there is a remedy.
In this article, we will be dealing with the ex parte decree, its execution,
remedies available, prevailing case laws and more.

Now starting with ex parte.

What actually ex parte is? What does it mean? Who can avail these decree?

Ex parte hails from latin language which means ‘by or for one party’ or ‘by
one side’.

An ex parte decree is a decree passed in the non-appearance of the defendant.

According to the principle of natural justice, a case must be decided in the
presence of both parties and both parties should be given appropriate
opportunity to present them. Though in some circumstances a court can
award an ex parte decree. When the plaintiff appears and the defendant
doesn’t, at the time when the suit is called out for hearing and the defendant
is duly served with the summon of appearance, then the court may hear the
suit ex parte and pass the decree against him. However these decrees are
neither null nor void nor inoperative but are merely voidable and unless and
until they are annulled on legal and valid grounds, they are proper, lawful,
operative and enforceable like a bi-parte decree and has all the force of a valid
decree.

However a judge is required to meet with all parties in a case and not with
just one, there come circumstances where this rule doesn’t apply and the
judge is allowed to meet with just one side, such as where a plaintiff requests
an order or dismissal before the answer or appearance of the defendant.

There are several remedies available to the parties:

▪ Application to the court by which such decree is passed to set it

aside: Order 9 Rule 13.

▪ Prefer an appeal against such decree: Section 96(2) (or file a revision
under Section 115 where no appeal lies).

▪ Apply for review: Order 47 Rule 1.

▪ File a suit on the ground of fraud.

These above-given remedies are synchronous and they can be prosecuted

simultaneously or synchronously.

In the case of Ajudhia Prasad vs .Balmukund. It was held that “where two
proceedings or two remedies are provided by a statute, one of them should
not be taken as operating in derogation of the other.”

According to the Order IX Rule 13 of Code of Civil Procedure dealing with

Setting aside of decree against the defendant can be entertained only in the
following two grounds:

1. Where the summons was not duly served. The defendant was
prevented from sufficient cause from appearing where the fact was
called for hearing.

Although, this rule is available only if the person against whom the ex parte
decree is passed on grounds of default of appearance as per Rule 6 Order IX.
Under this rule, only the defendant-petitioner can avail of this remedy. Non-
party to the suit cannot apply through this rule unless if he proves that his
interest is affected by such decree.

1. Conditional Relief:

The Court on the satisfaction of the grounds may impose conditions for setting
aside the decree. It may order for payment of costs or may ask the defendant
to deposit the decretal amount or a part of it, or may direct him to furnish
security or any other condition as the Court deems fit and appoint a day for
proceedings of the suit.

The limitation period for filing an application for setting aside the decree is 30
days from the date of knowledge of the decree.

In Gauhati University v. Niharalal Bhattacharjee summon was served to the

petitioner on May 28th, 1990 for an appearance on the next day. As per Rule
6 of Order V, there was a lack of sufficient time for appearance the suit was
adjourned to July 19th, 1990 but the date was not communicated to the other
party. The SC held that as the summons was not duly served the limitation
began to run only when the petitioner had the knowledge of the order. Hence,
as the application filed within the 30 day period the decree was set aside.

After the ex parte order is set aside, the suit is restored to file and parties are
relegated to the position they occupied before the non-presence of the
defendant, and the court will proceed with the suit de novo and decide on
merits. If an application for setting aside is rejected an appeal lies against
such order.

▪ An appeal against such decree: Section 96(2) (or to file a revision

under Section 115 where no appeal lies)

▪ Apply for review: Order 47 Rule 1

▪ File a suit on the ground of fraud.

In the case of Sunderlal v. Nandramdas, it was observed that though the Act
does not give any power of dismissal, it is axiomatic that no court or tribunal
is supposed to continue a proceeding before it when the party who has moved
it has not appeared nor cared to remain present. This was approved in the
case of Dr. P Nalla Thampy v. Shankar.

Suit – A suit to set aside an ex parte decree is not maintainable. But if an ex

parte is alleged to have obtained by fraud, the defendant can file a regular
suit to set aside such decree. It is a settled law that fraud vitiates the most
solemn transactions. In such suits, the owner is on the party who alleges that
the ex parte decree passed against him was fraudulent.

Revision – An order setting aside an ex parte is the “case decided” within the
meaning of Sec.115 of the Code and is, therefore, revisable. A High Court may
also exercise their supervisory jurisdiction under Art.227 of the Constitution
in such appropriate cases.

Conclusion- The Civil Procedure Code is a vital instrument of the country

today to tackle the problems in procedure regarding civil judicial
administration. The Code has served the country in more ways than predicted
by its makers. There have been various amendments and there is scope for
new amendments in the Code. The conceptualization of appearance and non-
appearance of parties have been given space in the Code respecting the
principles of natural justice. Each party gets his rightful chance to defend
himself and present his case before the court. The doctrine of fair hearing is
also implied in this topic. Audi alteram partem which literally means “hear
the other side” has everything to do with this portion of the Civil Procedure
Code, 1908.
The defendant is served with the summon to appear before the court and
submit to the jurisdiction of the court. The summons is a way of informing
the defendant about the complaint by the plaintiff and the date of hearing of
the suit. The defendant is bound by the summons and has to appear in the
court either personally or through his legal representatives on the date
prescribed in the summons. If the defendant fails to appear he should prove
that there was “sufficient cause” for his non-appearance. There is no standard
rule laid down for judging what is ‘sufficient’ and what is not. It depends on
the facts and circumstances of the case. Order IX elaborates on the procedure
to be adopted by the court and the course of law to be followed in different
situations which have been dealt with in detail in this project. The concept of
ex parte decree belongs particularly to Order IX of Civil Procedure Code, 1908
only.
 //Introduction:-
The right to be heard in a suit is one of the important
principles of the natural justice and our Civil Procedure duly provides for such
right to the party. Despite the sufficient opportunity provided if a defendant
absents from the court, when he called upon on the day of hearing mentioned
in the summons duly served on him, the court is empowered to proceed ex
parte and to pass an ex parte decree against such defendant under Order 9,
Rule 6 (1) (a).
Meaning of Ex parte decree:-
When the suit is called out for hearing and the
plaintiff appears and the defendant does not appear and summons is duly
served, the court may proceed ex parte against him and can pass a decree
called ‘ex parte’ decree.

Remedies against ex parte decree:-

The defendant, against whom an ex
parte has been passed, has the following remedies namely:-
1. Application to set aside the ex parte decree (Order 9 Rule 13)
2. An appeal against such decree; section 96(2) (or to file a revision under
section 115 where no appeal lies;
3. Apply for review under Order 47 Rule 1; or
4. File a suit on the ground of fraud.
Bhanu Kumar Jain V. Archana Kumar, (2005) 1SCC 787 it was held that the
above-mentioned remedies are concurrent and they can be prosecuted
simultaneously or concurrently.
Application under Order 9, Rule 13:-
An application under Order 9 Rule 13 of CPC dealing with setting aside
of decree ex parte against the defendant can be entertained only the following
two grounds;
1) Where summons was not duly served
2) Where the defendant was prevented from sufficient cause from appearing
where the fact called for hearing.
However, this rule is available only to the person who is a default of
appearance as per Rule 6 of Order 9. Under this rule, only the defendant can
avail this remedy not the non-party to the suit unless if he proves that his
interest is affected by such decree.
The limitation period for filing an application for setting aside ex-
parte decree is 30 days from the date of the decree.
Effect of setting aside ex parte decree:-
The effect of setting aside an ex
parte decree is that the suit is restored, and it stood as before the decree. The
trial should commence de novo and the evidence that had been recorded in
the ex parte proceeding should not be taken into account.
An appeal under sec. 96:-
An ex parte decree is a decree under section
2(2) of the Code and, therefore, an appeal can be filed against such decree by
the aggrieved party under section 96(2) of the Code.
A review application under sec. 114:-
Provisions of the Order 47 Rule 1
and section, 114 of the CPC empowers the court to review its order if the
condition precedent laid down therein are satisfied the substantive provision
of law does not prescribe any limitation on the power of the court except those
which are expressly provided under the sec.114 of the code in terms wherein
it is empowered to make such order as it deems fit.
Filing of a suit on the ground of fraud:-
A suit to set aside an ex parte
decree is not maintainable. But if an ex parte decree is alleged to have been
obtained by the fraud by the plaintiff, the defendant can file a suit to set aside
such decree. It is settled law that fraud damages the most solemn
transactions. In such suits, the onus is on the party who alleges that the ex
parte decree passed against him was fraudulent.
To maintain such action, it should be proved that the fraud alleged must be
actual, positive fraud, a mediated and intentional contrivance so as to keep
the parties and the court under the dark so as to obtain a decree by that
contrivance.
The suit is maintainable despite unsuccessful application made under Rule
13 Order 9 or rejection of application for an appeal.
Conclusion:
Where in any suit, an ex parte decree has then it can also be set aside
if there is sufficient reason behind the absence of a party. If the court is
satisfied with the reason of absence then it may set aside an ex parte decree.
During all these procedures the court must keep in mind that nowhere any
miscarriage of justice is done while passing an ex-parte decree.