Scope and Effect of Ex Parte Decree

Decree has been defined under section 2(2) of C.P.C. 1908. Decree refers to

  • Formal expression of an adjudication
  • Conclusive determination of the rights of the party at the trail

Nature

  • Could be conclusive or preliminary
  • Can include rejection of plaint or determination of any point of the question in that trail.
  • Can not include
  • Any adjudication where the appeal lies like an appeal from the order.
  • Order of dismissal from default.

Essentials of decree

  • Must be an adjudication
  • This adjudication must have been done in a suit
  • It should determine the rights of the parties to the suit
  • The determination must be conclusive one
  • Determined through a formal expression.

Ad an ex-parte decree is one passed in the absence of the defending party (in absentia); subjected to the situation where the defendant is duly served with the notice of the court.

Nature has been identified in case Chandu Lal Agarwalla v. Khalilur Rahaman AIR 1950 PC 17

  • Not null and void
  • Not inoperative
  •  yes valid/lawful
  • Merely voidable

Remedies

  • Can apply to the court from where the ex-parte decree had passed to set it aside under order 9 rule 13
  • Can apply for the appeal against the ex-parte decree under section 96(2) of C.P.C.
  • Can apply for the revision of such ex-parte decree under section 115 of C.P.C.
  • Can apply for a review under Order 47 rule 1
  • If the suit of the ground of fraud found to be proved.

Nature of the remedies concluded to be concurrent and could be prosecuted simultaneously.[1] Where two remedies are given by the resolution, one of them ought to be taken as working in discrediting of another[2].

SETTING ASIDE EX-PARTE DECREE: RULE 13

Who can apply?

  • A defendant against whom the decree had been passed
  • In the case of two or more defendant, any one of them or all together can apply
  • The term “defendant” includes those also who is adversely affected by the decree even though he might note the party
  • In the case of the purchaser of a mortgaged property can also apply here.
  • The defendant against whom the decree had been passed could not be said as the “aggrieved” party.

Where the application lies?

  • The application to set aside the past ex-parte decree lies in front of the same court where the earlier decision lies.

Grounds on which you can apply?

  • Where  the defendant satisfied that the summon was not duly served
  • Where he satisfied the court that he was prevented by any sufficient cause

When Summon not duly served?

  • If defendant satisfied so in front of the court , the court will set aside the ex-parte decree

What is sufficient cause?

  • The term “sufficient cause” must be liberally constructed to enable the court to exercise powers ex debito justitse
  • It depends upon the facts and circumstances of the cause
  • In the case of delaying tactics and non-corporation on the part of the party, one cannot seek the indulgence of the court[3]
  • Where the lower court declines to allow ex-parte decree to be set aside , te supreme court will not interfere with such order[4]

Difference between “good cause” and “sufficient cause”

  • There is no material difference between the two expressions
  • It is that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a “good …” is that the requirement of a good cause is complied with on a lesser degree of proof than that of a “sufficient cause”[5]

Where government is defaulting party?

  • The term “sufficient cause” reflects the same meaning even in the case of the government also because any other interpretation would lead to violation of the equality enriched under Article 14 of The Indian Constitution.
  • Ground realities related to life need great attention.

What are the powers and duty of the court?

  • At the point when an application for putting aside ex parte order is made by the respondent, the court ought to consider whether the litigant was forestalled “and”; adequate cause “and”; from showing up under the watchful eye of the court when the suit was called out for the consultation.
  • While dealing in the case for setting aside a decree court must go with the liberal and elastic interpretation and observation rather than narrow and pedantic.
  • On the off chance that the court finds that there was an adequate reason for non-appearance, it will undoubtedly be put aside the order. Alternately, if " adequate cause and quote; hasn’t appeared, ex parte order can’t be saved. " this privilege and this obligation are a sine qua non of legal method.

What is test to this?

  • Is that the respondent was, he sincerely and honestly intended to remain present in the suit at the date of hearing and did his best to do so.

What is the relevancy of precedents?

  • “Sufficient cause” being a question of fact need to be decided on the circumstances and facts which are before the court not on the precedents.

What is effect?

  • The subsequent stipulation, as included by the Amendment Act of 1976, be that as it may, sets out that the court will not put aside an ex parte order only on the ground of anomaly in administration of request for a situation where the litigant had satisfactory notification of the date of becoming aware of the suit and had adequate time to show up and answer the offended party.
  • The Code along these lines makes a qualification among illicitness and abnormality.
  • The previous goes to the foundation of the issue and delivers the activity invalid and void.
  • The last mentioned, in any case, doesn’t nullify the activity, except if bias has been caused to the individual creating an objection.
  • The word “and”; in the subsequent stipulation to Rule 13 must be perused as conjunctive and not disjunctive Hence except if both the conditions are fulfilled, an ex parte order can’t be set aside.

Where the burden of proof lies?

  • The sufficient ground for non appearance lies on the defendant.
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What is the limitation?

  • Application for setting aside the decree could be made within thirty days from the day the decree was passed.

Notice to opposite party.

  • An ex-parte order can’t be put aside without giving notification to the opposite party and without giving him a chance of hearing. This is in consonance with the standards of common equity and reasonable play.

Procedure

  • An application under Rule 13 for putting aside ex parte declaration might be made by the respondent. In the event of the passing of the litigant, his legitimate delegates can likewise make such an application. It ought to be marked and confirmed by the gathering and not by his promoter.

What are the conditions for imposition?

  • While putting aside ex parte order, the court has wide prudence to force proper conditions on the litigant.
  • The court has exceptionally wide watchfulness in forcing such terms on the respondent as it might suspect fit before putting aside the ex parte order. It might request the installment of expenses or may arrange the respondent even to store t he decretal sum in the court in a fitting case.

What is the power to set aside decree?

  • Because of specific provision for setting aside ex-parte decree, no inherent power can be exercised to set aside to set aside such decree.

Res Judicata

  • When an application for setting aside an ex-parte decree is dismissed, no fresh application would lie to it.
  • Dismissal would take place on the merits and of res Judicata will apply.

What is the extent of setting aside ex-parte decree?

  • A peculiar situation, however, arises where an ex-parte decree is passed against all the defendants but summonses are not served to all of them;
  •  or an application to set it aside is made by some of them; or where against some of the defendant a decree is passed on merits after hearing them but against some of the defendants it is passed ex-passed.
  •  As a general rule, the court will set aside the decree only against such defendant or defendants who had made an application.

Exception

  1. Where the decree is joint and indivisible.
  2. Where the suit would result in two inconsistent decrees if the decree were not set aside against the other defendants also.
  3. Where the relief to which the applicant is entitled cannot effectively give otherwise than by setting aside the decree against the other defendants also.
  4. Where the decree proceeds on the ground common to all the defendants.

Appeal

  • an allure lies against a request dismissing an application to put aside an ex-parte decree:4 Ac expressed over, an ex parte order is a declaration under Segment 2-(2) of the Code and, in this manner, and abused gathering can likewise document
  • An allure under segment 96(2) of the Code. 9S A dubious and the fairly confounded inquiry of law is:
  • Whether in such cases, the re-appraising court can just consider the announcement passed by the lower court on justifies regarding whether there adequate grounds to pass the pronouncement or regardless of whether the redrafting court can likewise think about whether there were adequate purposes behind the litigant for non-appearance and the court was most certainly not advocated in passing an ex parte order against the litigant.
  • There is a contention of legal choices on this point. One view is that the investigative court can consider just whether or not the pronouncement was wrong in law while the other view is that the redrafting court has the ability to consider whether the lower court was legitimized in continuing with the matter ex parte and, if the lower court was not directly in doing as such, to save the ex parte order.
  • It is presented that the last view gives off an impression of being a lot more satisfactory and best, especially when an allure is a continuation of suit and rehearing of the issue.

Revision

  • An order setting aside an ex parte decree is a; case decides; within the meaning of Section 115 of the Code and is, therefore, revisable.
  • High Court may also exercise supervisory jurisdiction under Article 227 of the Constitution in appropriate cases.

Review

  • all the remedies against an ex parte decree are concurrent,
  • An aggrieved party can also file an application for review if the conditions laid down in Order 47 Rule 1 are satisfied.

Suit

  • 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 plaintiff by fraud, the defendant can file a regular suit to set aside the decree.
  • It is settled law that fraud vitiates the most solemn transaction.
  • In such suits, the onus is on the party who alleges that the party that the ex-parte decree passed against him was fraudulent.

Also Read: Difference Between Judgment, Decree, Order under Civil Procedure Code


[1] Bhanu Kumar Jain v Archana Kumar AIR 2005 SC 626

[2] Ajudhia Prasad v. Balmukund, ILR (1866)  8 All 354 (FB)

[3] Vijay Kumar v. Kamla Bai (1995) 6 SCC 148

[4] Arunchala Iyer v. subhramanisha AIR 1923 Mad 63

[5] Arjun Singh v. Mohindar Kumar AIR 1964 SCC 933

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