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An ex-partie decree is a decree passed in the absence of defendants. Where the plaintiff appear and 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. It has all the force of a valid decree unless and until it is annulled. (Chandu Lal v. Khailur Rahman, AIR 1950 PC 17)
Remedies-
The following remedies are available to the defendant against wan ex parte decree has been passed-
(a) To apply to the court by which such decree is passed to set it aside Order 9 of Rule 13
(b) To prefer an appeal against such decree Sec. 96(2), or
(c) To apply for review; (Order 47, Rule 1), or
(d) To file a suit on to ground of fraud (Rup Chand v. Raghuvanshi (P) Ltd., AIR 1964 SC 1889).
Setting aside ex parte decree (Order 9, Rule 13)
Rule 13 deals with setting a side of ex parte decree passed against the defendant. Where the remedies by way of appeal and review are available to any person against whom a decree is passed, whether such decree is ex parte or bi-parte, the remedy provided by the rule can be availed of only by the defendant for whose default of appearance an ex parte decree is passed.
If the defendant satisfies the court that :
(i) the summons was not duly served, or
(ii) 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. Thus, it is a discretionary power of the Court
(A) Summons was not duly served.
As provided in Rule 6, the suit may proceed ex parte against the defendant only when it is proved by the plaintiffs to the satisfaction of the court that the defendant did not appear even though the summons was duly served. In that case, an ex parte decree may be passed against him. However, if the defendant satisfies the court that the summons was not duly served upon him, the court must set aside the ex parte decree passed against him. The proviso, as added by the Amendment Act of 1976 lays down that the court shall not set aside an ex parte decree merely on the ground of irregularity in service of summons in a case where the defendant had adequate notice of the date of hearing of the suit and had sufficient time to appear and answer the plaintiffs claim.
(B) Sufficient cause-
The expression “sufficient cause” has not been defined any where in the code. It is a question to be determined on the facts and the circumstances of each case. (UCO Bank v. Iyengar Consultancy Services, 1994 Supper 2 SCC 399.) There should be necessary materials on record which show that the applicant was diligent and Vigilant. Improper advice of advocate may be a good ground to set aside ex parte decree but it cannot be accepted as a sufficient cause in all cases.
Following are some of the grounds of “sufficient cause” for the absence of a party-
(i) Bona fide mistake as to the date of hearing,
(ii) Sickness of advocate,
(iii) Death of relation of a party,
(iv) Late arrival of a train
(v) Imprisonment of party,
(vi) Strikes of the advocates
An application for setting aside ex parte decree can be made within 30 days from the date of the decree. (Punna Lal v. Murari Lal, AIR 1967 SC 1384). An ex parte decree cannot be set aside without issuing notice and without giving him an opportunity of hearing to the opposite party (Rule 14).
This is in consonance with the principles of natural justice and fair play. The discretion of the court is very wide in setting aside the ex parte decree. It can order the payment of cost or can also order to deposit the decretal amount in the court but such discretion must be exercised reasonably and judicially.
Prefer an Appeal
An ex parte decree is a decree under Section 2 (2) of the code. An appeal lies against an order rejecting an application to set aside ex parte decree. An aggrieved party can also file an appeal under Sec. 96(2) of the code.
Application for Revision
An order setting aside an ex parte decree is revisable under Section 115, CPC.
To apply for review (Order 47, Rule 1) An aggrieved party can also file an application for review if the conditions laid down in Order 47, Rule 1 are satisfied.
File a suit on to ground of fraud
if an ex parte decree is alleged to have been obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside such decree. Rup Chand Gupta vs Raghuvanshi Private Limited & Anr on 15 April, 1964.
Effect of setting aside ex parte decree. The effect of setting aside ex parte decree is that the suit is restored. The evidence recorded in the ex parte proceeding should not taken into consideration and the de novo trial (afresh) should be commenced.
In Mahesh Yadav v. Rajeshwar Singh, AIR 2009 SC 1064, District Judge, by administrative order had transferred case ex parte decree passed on basis of compromise entered into between two of six defendants and plaintiff. The Other defendants were not aware developments Nothing on record to show that same Counsel represented said other defendants. Even though joint written statement was filed by all the defendants and alternate remedies were available, application for setting aside ex parte decree at instance of other defendants was maintainable.