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Remedies Available To A Defendant Against Whom A Decree Has Been Passed Ex Parte

The right to be heard or hear the other side is one of the fundamental principle of natural justice embodied in the maxim 'audi alteram partem'[1], that is, no one should be condemned unheard. The Civil Procedure Code duly provides such right to the parties appearing before the court, when a suit is instituted and where the plaintiff appears when the suit is called for hearing and despite of sufficient opportunity is provided defendant does not appear before the court to answer the plaintiff's claim when he is called upon the day of hearing and summons is duly served on him, the court is empowered to proceed ex-parte and pass a ex-parte decree against such defendant under Order 9 Rule 6(1)(a) of CPC. [2]

What Is An Ex Parte Decree

An exparte decree is a decree passed in the absence of defendant (in absenti) where the plaintiff appears and defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex-parte and pass a decree against him. [3]

To apply to the court by which such decree was passed to set aside such decree under Order 9 Rule 13 of Civil Procedure Code.

Order 9 Rule 13- Setting aside ex-parte decree

The defendant against whom a ex-parte decree is passed can file an application to the court which passed such decree to set aside on two grounds:
  • Summons was not duly served upon him
  • He was prevented by sufficient cause to appear before court.
The court shall pass an order setting aside ex-parte decree upon such terms as to costs, payment into court or otherwise as if it thinks fit and shall appoint a day for proceeding with suit, that is restore the suit to its original position. Where the decree is of such a nature that it cannot be seaside as against such defendant only it may be set aside as against all or any of the other defendants also.

To prefer an appeal against such decree under Section 96(2) of CPC. An ex-parte decree is a decree under Section 2(2) of CPC, therefore an appeal can be filed under Section 96(2) of the Code.

He can file both appeal under section 96(2) of CPC and application under Order9 Rule 13 simultaneously. [4]
To file a Revision under section 115 of CPC where no appeal lies.
To apply for Review, if conditions under Order 47 Rule 1 is fulfilled.

If the application under Order 9 Rule 13 is dismissed he can prefer an appeal under Order 43 Rule 1(d), but after dismissal of appeal under Order 43 Rule 1(d) he cannot file an appeal under Section 96 CPC.

If appeal under Section 96 of CPC alone is filed to set aside the ex-parte decree, while appeal is pending he withdraws the appeal, then he can make an application under Order 9 Rule 13. [5] But once an appeal is heard on merits under Section 96 of CPC and has been dismissed, he cannot file an application under Order9 Rule 13. [6]

Court has inherent power under section 151 CPC to set aside the ex-parte decree if no case is made out under Order 9 Rule 13. [7]

An appeal under Section 96(2) CPC is a statutory remedy. The right to appeal is not a mere matter of procedure; but a substantive right. Right to appeal under Section 96(2) CPC challenging the original decree passed ex- parte, being a statutory right the defendant cannot be deprived of the statutory right merely on the ground that earlier application filed under Order 9 Rule 13 CPC was earlier dismissed. [8] Observing that the right to appeal is a statutory right and that the litigant cannot be deprived of such a right, the supreme court observed that:
A right to question the correctness of the decree in a first appeal is a statutory right.

Such a right shall not be curtailed nor shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so. [9] It is a question of fact whether dilatory tactics have been adopted or whether there is a lack of bonafide in pursuing the remedy of appeal under Section 96(2) CPC after the dismissal of application under Order 9 Rule 13. The same has to be considered depending upon the facts and circumstances of each case. [10]

To file 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 plaintiff by fraud the defendant can file a regular suit to set aside such decree. It is settled law that fraud vitiates the trial.

An application for setting aside an ex-parte decree can be made within 30 days from the date of the decree under Article 123 of Limitation Act. [11]

This Article is intended to guide people looking for remedies available to a defendant against whom an ex-parte decree is passed under 0rder 9 Rule 6(2)(a). Its very unlikely that there will be any deviation in remedies outlined above but it would be highly recommend to consult a lawyer to see how applicable these remedies are in a particular case.

  1. Principles of Natural Justice
  2. Code of Civil Procedure, 1908
  3. Chandu Lal Agarwalla v. Khalilur Rahaman AIR 1950 PC 17
  4. Bhanu Kumar Jain . Archana Kumar (2005) 1 SCC 787
  5. Explanation to Order 9 Rule 13 Civil Procedure Code 1908
  6. Neerja Realtors (P) Ltd v. Jaglu (Dead) Through Legal Representatives (2018) 2 SCC 649
  7. K. B Dutt v. Shamsddin Shah AIR 1930 Cal 488 at p. 489
  8. Bhivchandra Shankar More v. Balu Gangaram More and others (2019) 6 scc 387
  9. Deepal Girihbhai Soni v. United India Insurance Co.Ltd (2004) 5 SCC 385
  10. N Mohan v. R Madhu 2020 (1) CTC 343
  11. Article 123 of The Limitation Act,1963

    Award Winning Article Is Written By: Ms.Amala Lawrence
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