Ex - Parte Decrees

An ex parte decree is a decree passed in absence of the defendant where the plaintiff appears and

the defendant does not appear at the time when the suit was called upon for hearing and provided

that the summons were duly served to the defendant then the court can clear the matter ex party

and pass a decree against him. Such a decree is neither null or void not inoperative but is

voidable upon certain legal and valid grounds. The ex parte decree is proper like a bi parte decree

and has all the force of a valid decree. - Pandurang Ramchandra v. ShantiBai Ramchandra.

Remedies Available to the Defendant- The Defendant against whom an ex parte decree has been

passed

a. to apply to the court by which such decree is passed to get it set aside. -Order 9 Rule 13.

b. to prefer an appeal against such decree Section 96 (2)

c. To apply for review. - Order 47 Rule 1.

d. To file a suite on the ground of fraud. - Kiran Kumar v. A.S. Khader.

The above mentioned remedies are concurrent and they can be prosecuted simultaneoulsy.

Where two proceedings or two remedies are provided by statute one of them must not be taken

as acting in derogation of other.

Rule 13 - Setting Aside Ex Parte Decree

The Defendant Against whom an ex parte decree has been passed may apply for getting it set

aside. The expression defendant means any person adversely effected by such decree. But a
defendant against whom a suite has been dismissed cannot be said to be aggrieved and cannot

apply under the rule.

Where the Application May be Filled ?

An application for setting aside the ex parte decree may be made to the court which passed the

decree against him. Where the decree is confirmed by a superior court an application may be

filled to a superior court.

Ground for setting aside the decree.

Under this rule the defendant may apply too set aside the decree upto the satisfaction of the court

on the ground -

a. The summons was not duly served. - The Suit which was declared as ex party due to the non

appearence of the defendant and such non appearance was attributed to the fact that the

summons were not served upto the satisfaction of the court the court may set aside the previous

order. The defendant has to submit that the summons was not received by him in accordance

with the various modes of delivery of summons.

b. He was prevented by any sufficient cause from appearing when the suit was called upon for

hearing . - The expression sufficient cause has ot been defined anywhere in the court but has to

defined as per each case. A party should ot be deprived of hearing unless there has been

something equivalent to misconduct or gross negligence on his part. If there are delaying tactics

and non co- operation on the part of the parties he cannot seek indulgence of the court. - Vijay

Kr. v. Kamla Bai. The only test to be applied for determining a sufficient cause is whether the
party honestly intended to remain present at the hearing of the suit and did his best to do so. -

UCO Bank v. Iyengar Consultancy Services Pvt . Ltd.

Upon any two grounds the court may set aside the previous order of ex parte proceedings and

may appoint a fresh date for hearing.

Power and Duty of the Court. - When an application for setting aside the ex parte decree is made

by the defendant the court should consider about the existence of sufficient cause attributing to

such non appearance. If the court find that there was a sufficient cause for non appearance it is

bound to set aside the decree. Any order for the same is a judicial order and thus must be

supported by reasons. - Mahesh Yadav vs. Rajeshwar Singh.

Sufficient Cause - Illustrations.

1. Bona Fide Mistake as to the noting of the date of hearing.

2. Sickness of Hearing.

3. Late Arrival of the train.

4. Fraud of the opp. party.

5. Death of a relative of the party.

6.Strikes of the Advocates.

Non - Sufficient Cause.

a. Delaying Tactics.

b. Negligence of Party.
c. Counsel busy in some other court.

d. Mere thinking that the matter will be called upon for thinking.

e. Bald statement in relation to wrong date in the diary.