EX PARTE PROCEEDING

    Edited by: Vaani Garg

    MEANING

    Ex parte decree is a decree passed in absence of the defendant. Where the plaintiff appears but the defendant does not appear, despite service of summons to him, the Court may hear the suit ex parte and pass a decree against the defendant. The decree so passed is legal, valid , operative and enforceable like a bi-parte decree and it has all the force of the valid decree.

    REMEDIES

    Following remedies are available to the defendant  against whom an ex parte decree has been passed

    1. To apply for review : Order 47 Rule 1 of the code or[1]
    2. To apply to the Court which has passed the decree to set aside that decree : Rule 13 Order 9 of the code or
    3. To appeal against such decree section 92 ( 2) [or to file a revision  under section 115  where no appeal lies]
    4. To file a suit on the grounds of fraud

    All these remedies are concurrent and they can be prosecuted simultaneously or concurrently [2]

    LIMITATION PERIOD

    An application for setting aside an ex parte decree passed against the defendant in absentia must be made within 30 days from the date of the decree or where a summon or notice was not duly served within 30 days from the date when applicant obtained knowledge of the passing of the decree.[3]

    SETTING ASIDE EX PARTE DECREE: RULE 13

     WHO MAY APPLY?

    The defendant against whom ex parte decree has been passed may apply for setting aside the decree within 30 days from the date of decree, or where summon or notice was not duly served within 30 days from the date when applicant obtained knowledge of the passing of the decree. When there are two or more defendants any one or both of them can make an application .

    The term defendant is wide enough to include a person who is affected by such decree passed by the court. Under order 9 Rule 13 of the code, a purchase  of mortgage property can also make an application. But defendant against whom the suit has been dismissed cannot make an application under this rule and cannot be called aggrieved.

    WHERE APPLICATION LIES?

    An application for setting aside ex parte decree may be made to the Court which has passed the decree originally. Where such decree is modified, confirmed and reversed by superior court an application may be filed to a superior court.

    GROUNDS FOR SETTING ASIDE EX PARTE DECREE

    Rule 13 Order 9 of the Code provides that when ex parte decree is passed against the defendant , he may apply to the Court which passed the decree for an order to set it aside and if he satisfies the court that summons was not duly served and that he was prevented by some sufficient cause from appearing when suit was called for hearing , the Court will set aside the decree passed against him upon such terms as to cost , payment into cost or otherwise appoint a day for the hearing .

    SUMMONS NOT DULY SERVED

    As provided in Rule 6  the suit may proceed ex parte  against the defendant  only when it is proved by the plaintiff  to the satisfaction of the Court  that the defendant did  not appear  even though summon was duly served. In this case an ex parte decree may be passed against him. Therefore if the defendant satisfies the court that the summon was not duly served upon him  , the court may set aside the ex parte decree  passed against him.

    SUFFICENT CAUSE

    The expression sufficient cause has not been defined anywhere in the Code. It is a question to be determined in the fact and circumstances  of every case. The word sufficient cause must be literally construed to enable the court to exercise the power ex debito justitae[4] .A party should not be deprived of hearing unless  there has been something equivalent  to misconduct or gross negligence on his part. Necessary materials should be placed on record to prove that applicant was diligent enough. In some case improper advice of the advocate may be good ground to set aside ex parte decree but cannot be accepted as sufficient cause in all cases. Where the lower Court declines to allow ex parte  decree to be set asid, the Supreme Court will not interfere  with such order.

    NOTICE

    According to Rule 14  Order 9 the Court before setting aside ex parte decree on  a application , a notice to that effect is required to be served to the opposite party


    [1] Ramji Pandey vs Swanim  kali AIR 2011 SC 489 SCALE 287

    [2][2] Mahesh Yadav vs Rajeshwar Singh AIR 2009 SC 1064 ( 2009) 2 SCC 205

    [3]  Article 123 of the limitation act  1963

    [4] Shamdasani vs Central bank of India ltd Air 1959 SC 39