When and what remedies are available for setting aside decree ex-parte against defendant? explain fully. (2018, 20 marks)
What is an ex-parte decree? Discuss the procedure for setting aside an ex-parte decree. (2019, 20 marks)
Ex-parte Decree: An ‘Ex parte decree’ is a decree passed against a defendant in his/her absence. This situation arises when despite service of summons, only the plaintiff appears on the date of hearing, the Court may hear the suit ex parte and pass a decree against the defendant.
Order 9, rule 6(1)(a) states that: Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing
. The Rule further classifies this situation into three distinct scenario
When summons duly served. if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.
When summons not duly served. if it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant.
When summons served but not in due time. if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons.
Decree can only be given in relation to a suit. Although CPC does not define what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. the Privy Council defined the term suit as a civil proceeding instituted by the presentation of a plaint.
The defendant may apply to the Court for an order to set it aside. The application is to be made to the same court which passed the decree. The application can be made on the grounds that that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. If the court is satisfied, shall make an order setting aside the decree as against the defendant upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Rule 14 - No decree to be set aside without notice to opposite party.
No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.
Remedies Against Ex Parte Decree
An Application Under Order 9, Rule 13,
Order 9 Rule 13 states that while setting aside ex-parte decree, the defendant may apply to the Court by which the decree was passed for an order to set it aside and if the Court is satisfied that the summons were not duly served, or that he was prevented by any sufficient means from appearing when the suit was called on for hearing, the Court may make such order setting aside the decree against him as it thinks fit, and shall appoint a day for proceeding with the suit, provided that the decree was of such a nature that it could not be set aside as against such defendant but it may be set aside as against all or any of the other defendants also.
Appeal Under Section 96
An appeal may lie from an original decree passed ex parte: Unless expressly provided, appeal lies from any decree passed by the court. In cases, where the value of suit does not exceed Rs.10, 000 appeal can only be filed on question of law. When a decree has been passed against the Defendant as Ex-Parte appeal lies. In cases headed by two or more judges, the majority decision shall prevail. In case there is no majority, then the decree of lower court shall be confirmed.
Section 114 states that- Review- Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
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