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Ex parte Decree in CPC

Updated: May 5


Ex parte Decree in CPC


Content:-


                              Summons Not Duly Served

                              Sufficient Cause



Meaning of Ex parte Decree


An ex parte decree signifies a decree issued in the defendant's absence (in absentia). Should the plaintiff present themselves while the defendant fails to appear during the hearing despite being duly served, the court reserves the right to proceed ex parte and render a decree against them.


This decree is not inherently null and void, nor is it ineffective; rather, it is deemed voidable. Until annulled on legitimate and valid grounds, it retains its legitimacy, legality, operational status, and enforceability akin to a decree made with both parties present.


It carries the full weight and authority of a valid decree.


The defendant, upon whom an ex parte decree has been pronounced, holds the right to pursue various courses of action:


1. Petitioning the court that issued the decree to set it aside.


2. Lodging an appeal against said decree as per Section 96(2) or initiating proceedings under Order 9 Rule 13. Alternatively, resorting to revision under Section 115 if an appeal is not applicable.


3. Seeking a review through Order 47 Rule 1.


4. Initiating a suit based on grounds of fraud.


These remedies are concurrent, allowing for simultaneous or concurrent pursuit. It's crucial to note that when a statute provides multiple proceedings or remedies, none should be seen as diminishing the effectiveness of the others.

 
 

Setting Aside Ex Parte Decree


The defendant upon whom an ex parte decree has been imposed retains the option to petition for its annulment.


Moreover, in cases where there are multiple defendants, any one or more of them may likewise seek to challenge the decree through such an application.


The term "defendant" encompasses not only those directly named but also any individual adversely affected by the decree.


Consequently, such individuals may file an application under Order 9 Rule 13 of the Code.


However, it's essential to note that a defendant against whom the suit has been dismissed cannot be deemed "aggrieved" by the decree and thus cannot pursue an application under this rule.


An application for setting aside ex parte decree can be directed to the court that initially issued the decree.


In cases where this decree undergoes confirmation, reversal, or modification by a higher court, the application for its annulment may be submitted to the superior court.



Grounds for setting aside Ex-parte Decree

Summons Not Duly Served


As per Order IX Rule 6, the suit can proceed ex parte against the defendant solely upon the plaintiff's substantiation to the court's contentment that the defendant failed to appear despite receiving duly served summons.


Under such circumstances, an ex parte decree may be issued against the defendant. Conversely, if the defendant convinces the court that the summons was not duly served, the court is obligated to revoke the ex parte decree rendered against them.

 
 

Sufficient Cause(Case Laws)


The term "sufficient cause" lacks a precise definition within the Code. Its determination hinges upon the particulars of each case's facts and circumstances (UCO Bank v. Iyengar Consultancy Services (P) Ltd., 1994 Supp (2) SCC 399).


"Sufficient cause" must be interpreted liberally to empower the court to exercise its authority ex debito justitiae (Shamdasani v. Central Bank of India Ltd., AIR 1959 SC 579).


A party ought not to be denied a hearing unless their conduct amounts to misconduct or gross negligence (Vijay Kumar v. Kamlabai, (1995) 6 SCC 148).


Diligent and vigilant behaviour must be demonstrated through the submission of necessary evidence (Vijay Kumar v. Kamlabai, (1995) 6 SCC 148).


While improper counsel advice might serve as a valid reason to set aside an ex parte decree, it may not universally suffice as "sufficient cause." Its adequacy hinges on the specific facts and circumstances of the case.


If there are indications of deliberate delays or non-cooperation from the party, they cannot expect leniency from the court. If a lower court refuses to annul an ex parte decree, the Supreme Court typically refrains from intervening in such decisions.


The criterion applied is whether the party genuinely intended to attend the suit hearing and made reasonable efforts to do so.


The following reasons have been deemed sufficient for the defendant's absence:


1. A genuine mistake regarding the hearing date.


2. Delay caused by the late arrival of transportation.


3. Illness affecting legal representatives.


4. Fraud perpetrated by the opposing party.


5. Incorrect noting of the date in the diary by the attorney.


6. Negligence of a next friend or guardian in cases involving minor plaintiffs or defendants.


7. Bereavement in the family of a party.


8. Incarceration of the party.


9. Advocates' strike.


10. Lack of instructions provided by a lawyer, and so forth.


Conversely, the following reasons have been considered insufficient for the defendant's absence when seeking to set aside an ex parte decree:


1. Deliberate delay tactics.


2. Merely stating an incorrect date in the diary without substantial justification.


3. Negligence on the part of the defendant.


4. Counsel occupied with proceedings in another court.


5. Suit involving high monetary valuation.


6. Defendant's absence after a request for adjournment has been denied.


7. Claiming hardship without adequate substantiation.


8. Absence to gain an unfair advantage.


9. Assuming the case would not be called.


10. Failure to participate in proceedings, and similar factors.


Power and Duty of the Court

The court holds both the power and duty to decide on applications to set aside ex parte decrees. When a defendant files such an application, the court must assess whether the defendant was legitimately prevented from appearing before the court during the initial hearing of the suit due to "sufficient cause."


If the court determines that sufficient cause indeed existed, it is obligated to annul the decree.


Conversely, if sufficient cause is not demonstrated, the ex parte decree cannot be revoked. This right and duty are fundamental components of judicial procedure, essential for ensuring fairness.


The court's approach in handling applications to set aside ex parte decrees should be characterised by a broad-minded and flexible outlook, rather than a rigid and overly technical one.


Any decision to set aside an ex parte decree must be accompanied by reasoned justification, as it is a judicial act.


The criterion to be applied is whether the defendant genuinely and earnestly intended to be present during the suit's hearing and made sincere efforts to do so.


If the answer is affirmative, the ex parte decree should be overturned; however, if it is negative, the decree cannot be rescinded (Parimal v. Veena, (2011) 3 SCC 545).

 
 


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