RESEARCH ARTICLE IN SETTING ASIDE EX PARTE

DECREE UNDER ORDER 9 RULE 13 OF CPC ,1908

Submitted in Partial fulfillment of the requirement for the Degree of
Bachelor of Laws
Submitted by
AKHIL BABU
LLB 3nd SEMENSTER

Under the Guidance of

Ms. RAMYA GUNA
CMR SCHOOL OF LEGAL STUDIES
2018

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ACKNOWLEDGEMENT

I would like to hereby thank School of Legal Studies, CMR University for providing me the
opportunity to work on this Research paper which by in itself was enriching experience. I
believe the learning experience it has given me, will be cherished forever and I am confident
the knowledge so gained has ingrained in me a greater thirst of making a mastery on the
subject. I would extend my sense of gratitude to all the faculty of School of Legal studies,
CMR University specifically to Ramya ma’am, who has been a constant support with her
valuable inputs and motivation required to be able to complete this project which has led to
opening of our eyes to new areas that we can explore our interests on.

Yours Sincerely,

Akhil Babu

INDEX

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SL.NO Particulars Page no

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1 INTRODUCTION 5

2 SETTING ASIDE EX PARTE DECREE 6

3 SUMMONS NOT DULY SERVED 6

4 SUFFICIENT CAUSE 8

5 Upon such terms as to costs; etc 10

6 Who may apply for setting aside ex parte decree 11

7 Where can the application be made ? 11

8 Effect of setting aside 11

9 Dismissal of setting aside application 11

10 Limitation 11

11 Appeal 11

12 Revision 12

13 Ex parte Proceedings 12

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CONCLUSION
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BIBLIOGRAPHY
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CITATION

SCOPE OF THE PROJECT

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The project deals with the topic ex-parte decree and Setting aside decree ex parte against
defendant.

RESEARCH METHODOLOGY

SOURCES OF DATA
The sources of data for this project are secondary in nature, including books case laws &
online resources.

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INTRODUCTION

Where a defendant absents himself from court on date of hearing mentioned in the summons
duly served on him, the court is empowered under Order 9, Rule 6(1)(a) to proceed ex parte and
to pass an ex parte decree against such defendant . Order 9, rule 6(1)(a) talks about the procedure
when only plaintiff appears. The court does not pass an ex-parte decree without giving ample
opportunity to the opposite party to present in the court proceeding. [ CITATION A \l 16393 ] When
the court finds that the defendant is deliberately remaining absent, the court is bound to pass an
ex-parte decree in favour of the plaintiff.

The Order 9 rule 13 , said that when an setting aside decree ex –parte against defendant in which
the a decree is passed ex parte against the defendant, he may apply to the court by which the
decree was passed for an order to set it aside and if he satisfies that summons was not duly
served, or that he was prevented by any sufficient cause from appearing when the suit was called
on for hearing ,the court shall make an order setting aside the decree against him upon such term
as to cost payment to court or otherwise as it think fit and shall appoint a day for proceeding with
the suit.
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SETTING ASIDE EX PARTE DECREE

Order IX Rule 13 provides that, in any case in which a decree is passed ex parte against a
defendant, he may apply to the Court by which the decree was passed for an order to set it aside;
and if he satisfies the Court 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, the Court shall
make an order setting aside the decree as against him 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. [ CITATION
B \l 16393 ]

Grounds

The two grounds on the basis of which an ex parte decree can be set aside under Order 9, Rule
13.

 That the summons was not duly served, or

 That the defendant was prevented by sufficient cause from appearing when the case was
called on for hearing.

If either of these conditions is satisfied, the court must set aside the decree and where these
conditions are not satisfied the decree cannot be set aside. This question has to be decided on the
basis of evidence or affidavits

Summons not duly served

An ex-parte decree can be set aside if the defendant satisfies the court that summons were not duly served.
Prior to proceedings ex parte, a court must record a declaration of due service of summons under
Order 5 (Issue and Service of Summons) rule 19 (Examination of serving officer), this is
mandatory. Where there is nothing to show due compliance with rules 13 (Service on agent by
whom defendant carries on business) and 20 (Substituted service) of Order 5, the decree should
be set aside. Where the summons has not been duly served, the ensuing proceedings will be a
nullity.
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Due service refers to service which effectively brings the claim to the knowledge of the
defendant and is effected in accordance with the provisions of the code relating to service of
summons and in time for the defendant to attend and at the proper address. [ CITATION C \l 16393 ]

But an ex parte decree will not be set aside on the ground of irregularity in the service of
summons, when the court for reasons to be recorded, is satisfied, that notwithstanding such
irregularity, the defendant had knowledge in sufficient time to appear on that date and answer the
claim.

CASE

Mrs. Payal Ashok Kumar Jindal vs Capt. Ashok Kumar Jindal

FACTS

In this case the parties to the appeal were husband and wife. They hardly lived as husband and
wife for seven months later husband filed a petition under Section 13 of the Hindu Marriage Act,
1956 for dissolution of the marriage on the ground of cruelty.

During the pendency of the aforesaid divorce-proceeding before the Family Court,Pune, the wife
filed a petition before this Court seeking transfer of the case from the Family Court, Pune to
Delhi. This Court granted ad interim stay of the proceedings which remained operative but the
stay was removed later. Thereafter, the husband appeared before the Family Court but the wife
remained absent. Notice were sent by registered post to the wife on her address at Noida and also
at her Delhi address given in the proceedings before this Court. The notices having come back
with the remarks "not found" and a notice was published in a Delhi daily newspaper asking the
wife to appear before the Family Court. The wife not having appeared on court and the Family
Court ordered ex-parte proceeding and granting the husband a divorce decree.

The wife filed an application for setting aside the ex-parte divorce-decree. She contended that
she was forced to leave the matrimonial home at Pune and she was reside with her brother at
Delhi, that she applied to the Army Authorities claiming maintenance out of her husband's
salary, and that the Army Authorities sent a letter to her father informing that the application for
maintenance could not be entertained as the husband had already obtained a divorce decree from
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the Court. She further contended that she came to know this from her father only.The Family
Court dismissed the application for setting aside ex-parte divorce decree. She filed an appeal in
high court contended that the divorce petition should have been dismissed as not competent in
terms of Section 14 of the Hindu Marriage Act as the Statutory period of one year had not lapsed
since the date of marriage, even on merits the divorce-decree is based on no evidence and the
allegations in the divorce petition being wholly vague[ CITATION D \l 16393 ].

HELD

The court that the transfer petitions before the Court were dismissed that she did not approach
the High Court for transfer of her case which means she has been seriously contesting the
divorce proceedings and it would not be fair to assume that she deliberately choose to abstain
from the Family Court, and was intentionally avoiding the summons. In the facts and
circumstances of this case, the appellant was justified in her assumption that the proceedings
before the Family Court would be resumed after fresh notice to the parties. The court also said
that she don’t abstain from receiving the summons as she was not there the the postal authority
was unable to deliver it. Considering the above facts court directs to set aside the ex parte decree.

Sufficient cause

Where sufficient cause is shown, the decree shall have to be set aside. The term ‘sufficient cause’
is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all
possible cases and each case is to be judged upon its particular circumstances, and where non-
appearance is not intentional, a strict view should not be taken to put a party out of court. The
term sufficient cause means beyond the control of a party and cannot include cases of extreme
negligence.[ CITATION E \l 16393 ]

In order to set aside the ex parte decree under sufficient cause, the test that has to be applied is whether the
defendant honestly and sincerely intended to be present when the suit was called for hearing and did his best
to do so . Sufficient cause is to be judged by reasonable standard of cautious man
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CASE 1

Uco Bank vs Iyengar Consultancy Services

FACTS

In this case a suit for specific performance was filed by the respondent, M/s lyengar Consultancy
Services Pvt. Ltd., against the appellant United Commercial Bank in the Delhi High Court. The
suit was listed on 29-7-1988 for filing documents and their admission or denial, when the
defendant but the bank remained absent. It was then listed before the learned Single Judge of the
High Court on 12-8-1988, when the defendant was again absent. The learned Single Judge
proceeded ex parte against the defendant on that date and the suit was then listed on 9-9- 1988 as
a short-cause for final disposal. On that day also, the defendant don’t appear in court for the suit.
Accordingly, the learned Single Judge decreed the suit ex parte on that date

Later an application for setting aside the ex parte decree was made under Order IX Rule XIII
CPC by the defendant bank even if the single judge dismissed the application when the
defendant bank filed a application on High Court to set aside the ex parte decree with adduced
sufficient material to support its submission that he was not aware of the passing of the ex parte
decree and on the basis of the information given by the counsel from time to time, he was under
the impression that the suit was pending and was being properly contested. He has also been
shown from these documents that he was much after the passing of the ex parte decree that the
appellant came to know the factual position and he has do all necessary steps to change the
counsel.

HELD

Court held that considering the facts and circumstances emerging from the material placed
before us, we are satisfied that this is a fit case for setting aside the ex parte decree passed by the
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learned Single Judge of the High Court and the subsequent orders dismissing the application for
setting aside the ex parte decree and the review application together with the order of the
Division Bench dismissing the appeal also should be set aside. In this case the court said that the
word sufficient cause should be determined considering the facts and circumstances of the case.
[ CITATION F \l 16393 ]

CASE 2

Smt. Sudha Devi vs M.P. Narayanan & Ors

FACTS

In this case the plaintiff-appellant filed a suit for removal of the tenant defendant No. 1 for
default in payment of rent and also to have wrongfully sublet the flat to the second defendant.
But none of the defendants appeared. At the ex-parte trial the plaintiff examined one witness and
submitted certain documents in evidence. The Single Judge made an ex parte decree against the
respondent The respondent first filed an application for setting aside the ex- parte decree, but
later withdrew it and give an appeal against the decree.

The court allowed the appeal and set aside the decree on the ground that the plaintiff's sole
witness did not disclose his concern with the suit property or his relationship with the plaintiff
and that on the basis of the meagre evidence led by her, she had failed to establish her case.

HELD

The court held that the plaintiff cannot be allowed a decree on the evidence led by her in the suit
founded on the plaint as it is. Even in absence of a defendant the Court cannot pass an ex-parte
decree without reliable relevant evidence. The fact that the plaintiff chose to examine some
evidence in the case cannot by itself entitle her to a decree and set aside the ex parte decree.
Court also said that a party should not be deprived of hearing unless there is something
equivalent to misconduct or gross negligence on his part.[ CITATION G \l 16393 ]
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Upon such terms as to costs; etc

The rule gives a wide discretion to the court in the matter of imposing conditions upon ordering
the setting aside of an ex parte decree. A court can make an order of restoration subject to
fulfillment of conditions, but it should clearly specify the consequences of non-fulfillment of
conditions. The court can also extend the time for fulfillment of the conditions.

Who may apply for setting aside ex parte decree

The defendant aginst whom ex parte decree has been passed may apply for setting it aside.
Where there are two or more defendants any one or more of them can file application for it. The
word defendant include any one who is affected by decree

Where can the application be made ?

The application for setting aside the ex parte decree can be made in to the court which passed the
decree. When the decree is conformed , reversed or modified by a superior court the application
can be made in that court

Effect of setting aside

Upon setting aside of an ex parte decree, the status quo ante is restored and the trial commences
de nova from the stage at which the proceedings were taken ex parte. However, where the decree
is set aside on the ground that the claim is fraudulent, the suit cannot be restored and tried.

Dismissal of setting aside application

In appropriate cases restoration can be made u/s 151. An appeal may lie against the dismissal of
the application in default.

Limitation

An application under Order 9 rule 13 must in accordance with the bounds of Art. 164 of the
Limitation Act 1908 be made within 30 days of the decree.

Appeal
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The following types of orders can be passed under rule 13:-

 An order setting aside the decree which is not appealable nor can it be attacked under S.
105.
 An order setting aside the decree on certain terms which is by itself not appealable.
 An order rejecting an application under Order 9 rule 13 is dismissed on merits; it cannot
be attacked under S. 105 before the court hearing an appeal against the decree.
 Pending proceedings to set aside the decree, execution can be stayed.

Revision

An order setting aside an ex parte decree is not a decree. A revision against the order may lie if
the conditions of S. 115 are satisfied, as for instance, where the order is contrary to the
provisions of Order rule 13, or where the court has disposed of the application upon a
consideration of the merits of the decree, or has refused to set aside the decree despite the fact
that summons was not duly served or has disposed of the matter on an erroneous view regarding
limitation etc. However, no revision will lie if an alternate remedy is available.

Ex parte Proceedings

Rule 6 - Procedure when only plaintiff appears-

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for
hearing, then-

(a) When summons duly served—if it is proved that the summons was duly served, the Court

(b) When summons not duly served—if it is not proved that the summons was duly serve, the
Court shall direct a second summons to be issued and served on the defendant;
(c) 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
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day fixed in the summons, the Court shall postpone the hearing of the suit to future day
to be fixed by the Court, and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiffs' default that the summons was not duly served or was not
served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the
postponement.

Where a defendant absents himself from court on date of hearing mentioned in the summons
duly served on him, the court is empowered under Order 9, Rule 6(1)(a) to proceed ex parte and
to pass an ex parte decree against such defendant thereon.

Or the Order 9 rule 13 , said that when an setting aside decree ex –parte against defendant .in
which the a decree is passed ex parte against the defendant, he may apply to the court by which
the decree was passed for an order to set it aside and if he satisfies that summons was not duly
served, or that he was prevented by any sufficient cause from appearing when the suit was called
on for hearing ,the court shall make an order setting aside the decree against him upon such term
as to cost payment to court or otherwise as it think fit and shall appoint a day for proceeding with
the suit.
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CONCLUSION

Where a defendant absents himself from court on date of hearing mentioned in the summons
duly served on him, the court is empowered under Order 9, Rule 6(1)(a) to proceed ex parte and
to pass an ex parte decree against such defendant thereon.

Or the Order 9 rule 13 , said that when an setting aside decree ex –parte against defendant .in
which the a decree is passed ex parte against the defendant, he may apply to the court by which
the decree was passed for an order to set it aside and if he satisfies that summons was not duly
served, or that he was prevented by any sufficient cause from appearing when the suit was called
on for hearing ,the court shall make an order setting aside the decree against him upon such term
as to cost payment to court or otherwise as it think fit and shall appoint a day for proceeding with
the suit.
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BIBLIOGRAPHY
Statutes Referred:
1. Code of Civil Procedure, 1908.
Books Referred:

1. C.K. TAKWANI, CIVIL PROCEDURE

2. S. PAUL ET AL, MULLA’S THE CODE OF CIVIL PROCEDURE,
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CITATION
A) Shuvneek Hayer” Ex parte decree & remedies” 1-19-2019
B) Shivendra Pradap Singh” How to set aside ex parte decree passed in civil suit” retrieved
on 30-3-2010
C) Y.Srinivasa Rao Judge”service of summons in civil cases”15-7-2018
D) 1994 SCC, Supl. (2) 399
E) 1988 AIR 1381, 1988 SCR (3) 756
F) 1992 SCR (3) 81, 1992 SCC (3) 116
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