Ex parte Decree and its remedies || Order
9 Rule 13 || CPC ||
In this article, we are going to discuss what is ex parte decree?
And what are the remedies against the ex parte decree? etc. Let’s begin.
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 thirty 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.
Related article:-
Appearance and Non-Appearance of Parties || Order 9 || CPC ||
Related article:-
Appearance and Non-Appearance of Parties || Order 9 || CPC ||
Reference:-
Very helpful article.
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