Introduction
In situations where the defendant is noticeably absent on the scheduled hearing day as outlined in the summons, an ex-parte decree can be rendered. This type of decree is issued when the plaintiff appears before the court on the designated day, but the defendant fails to appear despite proper summons being served. In such instances, the court is empowered to conduct the proceedings ex-parte and deliver a decree in favour of the plaintiff in the defendant’s non-appearance.
Meaning :
An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where the plaintiff appears and the 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. Such a decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi-parte decree and it has all the force of a valid decree.
Remedies
The defendant, against whom an ex parte decree has been passed, has the following remedies available to him:
- To apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
- To prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115 where no appeal lies);
- To apply for review: Order 47 Rule 1; or
- To file a suit on the ground of fraud.
The above remedies are concurrent and they can be prosecuted simultaneously or concurrently. “Where two proceedings or two remedies are provided by a statute, one of them must not be taken as operating in derogation of the other.”
Setting aside ex parte decree: Rule 13
Who may apply ?
The defendant against 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 may also make such application.
The expression “defendant” is wide enough to include a person who is adversely affected by the decree. A purchaser of mortgaged property, hence, may make an application under Order 9 Rule 13 of the Code. But a defendant against whom the suit has been dismissed cannot be said to be “aggrieved” by the decree and cannot apply under this rule.
Where application lies ?
An application for setting aside ex parte decree may be made to the court which passed the decree. Where such decree is confirmed, reversed or modified by a superior court, an application may be filed in a superior court.
Grounds :
This rule requires an application by the defendant to set aside an ex parte decree passed against him if there exist sufficient grounds for it. If the defendant satisfies the court that
- the summons was not duly served; or
- he was prevented by any sufficient cause from appearing when the suit was called out for hearing, the court will set aside the decree passed against him and appoint a day for proceeding with the suit.
Effect of setting aside ex parte decree
The effect of setting aside an ex parte decree is that the suit is restored, and the court should proceed to decide the suit as it stood before the decree. The trial should commence de novo and the evidence that had been recorded in the ex parte proceedings should not be taken into account.
Case Laws:
Diwalibai v. Jailkumar, AIR 1969: When an application for setting aside ex parte decree is made by the defendant, the court should consider whether the defendant was prevented by “sufficient cause “from appearing before the court when the suit was called out for hearing. If the court finds that there was sufficient cause for nonappearance, it is bound to be set aside the decree. Conversely, if “sufficient cause” is not shown, ex parte decree cannot be set aside. “This right and this duty is a sine qua non of judicial procedure.
Panduranga Ramchandra v. Shantibai Ramchandra
It’s important to understand that an ex-parte decree is legally valid and not inherently null and void. However, it can be subject to challenge or deemed voidable unless it is invalidated based on legitimate and legal grounds. An ex-parte decree holds enforceable weight, similar to a decree reached through mutual representation, and it carries the same legal force as a valid decree.
