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8/25/19

Ex parte Decree and its remedies || Order 9 Rule 13 || CPC ||


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 ||

Reference:-



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