This article has been written by Raksha Yadav studying BBA.LL.B at ISBR Law College, Bangalore. This article discusses about ex-parte decree and remedies a defendant has regarding the same.
It has been published by Rachit Garg.
Every court proceeding commences with the appearance of both the parties or their legal representatives. The parties need to appear before the judge, otherwise, the parties might face adverse effects from their non-appearance. If any party did not get the opportunity to present their statement in court, it would be a violation of natural justice. Sometimes such scenarios occur when the party fails to appear in court. Therefore, Order 9 of the Code of Civil Procedure, 1908 (CPC) deals with the appearance and non-appearance of the party. This article mainly focuses on the non-appearance of the defendant, the consequences of his disappearance, and what remedies he can avail himself of if any order or decree is passed against him.
What is a decree
A decree is an official order issued by the court and it is only passed in civil suits under Section 2(2) of the CPC. In a civil suit, a decree is a formal expression of the decision made by the court that determines the rights and obligations of the parties. A decree can be either preliminary or final, or partially preliminary and partly final. It is always followed by judgement. A judgement is a final statement made by the judge in a particular civil or criminal suit. It is defined under Section 2(9) of the CPC.
A decree must include the condition for the rejection of any plaint or the question raised in Section 144 of the CPC. However, a decree can be passed if any appeal is filed against the previous order or decision and any order of discharge relating to default. A decree can not be referred to as a precedent to pronounce future judgments.
Essentials of a decree
A decree is a decision made by the judge in any civil suit. The essential elements that are required to announce the law are as follows:
Adjudication is the formal decision made by the judicial body in civil dispute matters. If any judicial officer does not make the order, there is no decree to arise. While making a decree decision, the adjudication must be formally expressed.
In the case of Naik v. Hansubala Devi (1983), the Court stated that if there is no adjudication of rights and adjudication of the dispute, then there is no decree.
Any civil proceeding which is initiated while filing a plaint in a civil court. If there is no civil suit filed, there is no decree passed in the suit.
In Hansraj Gupta v. Official Liquidators of the Dehradun-Mussoorie Electric Tramway Co. Ltd.(1932), the privy council defined the term ‘suit’ as any civil proceedings which commenced with the filing of a plaint.
A decree must be passed formally by the court, which must be followed by a judgement. It should be given separately according to the law.
Rights of the parties:
A decree consists of the substantive and procedural rights of the parties, i.e., the plaintiff and the defendant. It determines the legal rights of the parties which are in question in the matter of dispute.
In Kanji Hirjibhai Gondalia v. Jivaraj Dharamshi (1976), the Court said that the plaintiff and the defendant are the parties in a lawsuit. If the court passes any decision on the request of the third party in a lawsuit, then that decision is not considered a decree.
The decision made by the judge must be final and conclusive. It means the court can not entertain the same issues and facts again once it has settled down.
In Narayan Chandra De v. Pratirodh Sahini (1989), the Court stated that the determination should be definitive and binding on the court that makes it. An interlocutory order that does not finally clarify the rights of parties is not regarded as a decree for this reason.
What is “ex-parte”
‘Audi Alteram Partem’ is a Latin phrase that means, “Listen to both sides” and it is one of the principles of natural justice. Every party has a right to a fair hearing. If any party does not appear on the prescribed date, the court will issue summons and notices to appear before the court. When, during the proceedings of a civil suit, a plaintiff was present and the defendant was not present, and the summons was issued, then the court could proceed against the defendant and pass an ex-parte decree. The court has jurisdiction to pass an ex-parte decree under Order 9 Rule 6 of the CPC. The order states that if the defendant does not appear before the court despite having summons served on him, the court can pass an ex parte decree. But if the summons is not duly served, the court will issue another summons to the defendant. When the summons is served properly but the defendant does not get enough time to be present in court, the court will postpone the proceeding to a future date. If the court finds that the summons was not served properly due to the plaintiff’s fault, then the court will ask the plaintiff to pay the cost of adjournment of the hearings.
In M Krishnappa v. Mensamma (2020), the Karnataka High Court held that when the defendants attended an appearance but did not argue the case, it would be classified as Ex Parte and the defendants could maintain a petition under Order 9 Rule 13 of the CPC.
In Bhanu Kumar Jain v. Archana Kumar & Anr (2004), the Supreme Court stated that it is permissible for the defendant to argue that he had sufficient and reasonable grounds for not being able to attend the hearing of the suit on a relevant day, except to challenge the authenticity or otherwise of an order posting the matter for ex-parte hearing.
In the case of Textile Association (India) v. Balmohan Gopal Kurup and Another (1990), the landlord filed an eviction suit against his tenants for default in payment of the rent and obtained an ex parte decree. The respondent was not a party in the suit; only his mother and brother were the parties. The respondent filed an appeal claiming that he was also the tenant, hence the decree obtained by the landlord was not binding. The ex parte decree against the joint tenants is equally binding on all of them. Hence, the trial court set aside the ex parte decree.
Setting aside an ex-parte decree under Order 9 Rule 13 CPC
Order 9 Rule 13 provides a remedy for the defendant to apply to set aside the ex-parte decree which was passed due to the non-appearance of the defendant in the civil suit. The court only sets aside the ex-decree when the defendant presents a satisfactory reason in court or the summons is not served well.
Summons duly not served well:
When the suit is filed in court, from the filing date of the suit to thirty days afterwards, the summons must be served to the defendant. The summons is the official notice that the defendant must appear in court on their behalf. But there are certain scenarios, such as the postal address being incorrect or changed, where the plaintiff has not paid the fees. When the summons is not served properly to the defendant or the defendant does not get enough time to appear before the court. Then the court may set aside the ex parte decree.
In Sushil Kumar Sabharwal v. Gurpreet Singh and Ors (2002), the Court admitted that the summons was not duly served to the defendant and that the defendant did not have enough to be present in court.
In Gauhati University v. Shri Niharlal Bhattacharjee(1995), the Supreme Court stated that when the summons was not served properly, the limitation period begins when the appellant knew of the ex parte decree.
When the court finds sufficient grounds for the non-appearance of the defendant, the court will set aside the ex parte decree. The term ‘sufficient cause’ is not defined in the code. The court will determine through its interpretation in different cases. The defendant has the burden of proof to prove sufficient cause for non-appearance in court.
In G.P. Srivastava v. Shri R.K. Raizada & Ors. (2000), the Court said that if the party is not able to set any ‘sufficient cause’ for his nonappearance on the fixed date then the ex parte proceedings will be initiated against him.
In New Bank of India v. M/S. Marvels (India) (2001), when the appellant was not able to present sufficient cause in the court and was found negligent in presenting his case, the court could not set aside the decree.
In Parimal v. Veena @ Bharti (2011), the Supreme Court stated that the term ‘sufficient cause’ means the defendant did not act negligently and genuinely wanted to be present when the case was summoned for hearing and used his best effort to do so.
Remedies against ex-parte decree
When a defendant presents sufficient cause before the court for non-appearance the ex-parte decree can be set aside. Once the court accepts the defendant’s reason, it will set aside the decree. The civil code provides remedies that a defendant can use to set aside the decree passed by the code and get the opportunity to represent his case.
A defendant against whom an ex-parte decree has been issued has the following remedies:
- Application to set aside the ex-parte decree under Order 9 Rule 13.
- Appeal against the decree under Section 96(2)
- File a revision under Section 115
- Apply for review under Order 47 Rule 1
- Suit on the ground of fraud by the plaintiff.
Application under Order 9 Rule 13 CPC
A defendant can make an application under this order because the summons had not been served properly and he had sufficient grounds for the nonappearance before the court. The defendant has a thirty days time period to apply, setting aside the suit. If the plaintiff did not appear, he may apply to set aside the order of dismissal after the lawsuit has been dismissed. The order dismissing the lawsuit may be reviewed and a date set for its continuation if the court finds the reason for non-appearance to be a sufficient justification.
In the case of Chhotalal Mohanlal v. Ambalal Hargovan (1925), the Bombay High Court stated if the party came late and a decree had been passed, then the party was entitled to restore his suit after paying the cost to the court.
In Subodh Kumar v. Shamim Ahmed (2019), the Supreme Court held that if the defendant proves that the summons had not been served properly, then the court could set aside the ex parte decree passed against all the defendants.
An appeal under Section 96(2) CPC
The defendant can also make an appeal against the ex parte decree under Section 96 (2) of the Code before the special bench of the High Court. The defendant has a statutory right to appeal under Section 96 (2) of the Code and it can not be denied because the application filed under Order 9 Rule 13 was dismissed. This Section states that the aggrieved party against whom a decree was passed has at least one right to file an appeal to the higher authorities.
In Bhivchandra Shankar More v. Balu Gangaram More and others (2019), the Supreme Court held that the right to appeal is a statutory and substantive right of the party, and such rights cannot be taken away from the defendant. Hence, the defendant can use both the remedies application under Order 9 Rule 13 and the appeal under Section 96 (2) of the Code.
Revision application under Section 115 CPC
When there is no appeal available against the decree, the defendant can file a revision application under Section 115 of the Code in the High Court. The High Court has the authority to examine the orders and decrees passed by its subordinate courts when the subordinate court fails to exercise its jurisdiction and fails to settle the matter, or when the subordinate court does not have jurisdiction over the matter. The defendant can appeal the revision application when the final decree has been pronounced or the High Court can also take it suo moto. The deadline to submit a revision application is 90 days from the degree or order that is being sought to be revised.
The High Courts have been given revisional authority to provide the aggrieved party with a remedy if the justice process is hampered by statutory mistakes. If it is determined that a subordinate court has not acted according to the power provided to it by law within its jurisdiction, the High Court has been given the authority to review the matter.
In the case of Chandu S/O Jagannath Ambekar v. Digambar S/O Kisanrao Kulkarni (2004), the Bombay High Court held that an application under Section 115 of the CPC is not maintainable because it can be only when the aggrieved party does not have a remedy to file an appeal under Section 96 of the Code and when the final order has been passed.
Review application under Order 47 Rule 1 CPC
The defendant can apply to Order 47 Rule 1 and Section 114 of the Code to review the order passed by the court. A review application can be filed when there is some new evidence discovered, any fault discovered by the court, or any sufficient cause. Any aggrieved party can file a review application against whom a decree has been passed, and an appeal is allowed from that decree, but no appeal is filed. A review application shall be filed within thirty days after the decree has passed.
There is no legal restriction on filing an appeal from such a decree or order once the review application is filed. The review application cannot be extended if the appeal is so preferred and resolved by the speaking order, i.e., on merits, before the review application. When the court does not find sufficient grounds for review of the application, it will be dismissed. But if the court agrees that it does, then the request will be granted and also serve notice on the opposing party to provide him with the opportunity to appear and defend the decree or order under review.
In the case of Chajju Ram v. Neki (1922), the Court stated that the review application was permitted on three grounds, i.e., new material found, mistake or error, or any sufficient ground. There is no doubt that the third ground mentioned widens the scope of the grounds for review, but at the same time, that “sufficient reason” must be at least similar to either of the other two grounds.
In the case of Parsion Devi and Ors. v. Sumitri Devi And Ors. (1997), it was stated that if there is a mistake or error that is obvious from the record’s surface, then the judgement may be subject to review. It is difficult to claim that a mistake that needs to be proven through rational analysis is obvious from the record on its own and justifies the Court using its review authority under Order 47 Rule 1 CPC.
In the case of Union of India v. Nareshkumar Badrikumar Jagad & Ors. (2018), the Supreme Court held that any person who is affected by the judgement can take the remedy of a review petition.
Suit on the grounds of fraud:
A defendant can file a suit if the plaintiff obtained an ex parte decree by committing fraud against the defendant. The burden of proof is on the defendant to prove in the court the ex parte decree that has been passed is fraudulent.
If it is proved in the court that the suit filed by the plaintiff does not disclose the cause of action or the suit is barred by the limitation act, the court can reject the plaint filed by the plaintiff.
Limitation for filing an appeal
After receiving the summons from the court, the defendant will have thirty days to file his written statement against the plaintiff’s plaint. The defendant either accepts the claims made in the plaint or rejects them. The defendant can also raise new facts in his written statement. Order 8 Rule 2 of the CPC deals with the written statement. A written statement can be filed by the defendant itself or by its legal representative. If the defendant fails to file the written statement within thirty days, then the defendant will have ninety days to file the written statement. The reason for the time extension is recorded, and it will not be extended anymore.
When there is more than one defendant in a suit, they can file one written statement, which is duly signed by all the defendants. Defendants can also file different written statements. If the defendant fails to submit the written statement within one hundred twenty days(i.e., 30 days plus 90 days), then the court will pass an ex parte decree and the defendant’s right to file a written statement will be forfeited.
In the case of SCG Contracts India Pvt Ltd v. K S Chamankar Infrastructure (2019), the Supreme Court held that the defendant has 120 days to file a written statement. If the defendant fails to file, their rights will be forfeited. The court shall not allow the recording of the statement under Order 8 Rule 1, and the court does not have the power to accept the written statement after the expiry of 120 days as per the provisions of Order 8 Rule 10.
When plaintiff does not appear
During the proceedings, when the defendant has appeared in the court but the plaintiff is absent and the defendant does not admit the claim filed by the plaintiff, the court shall dismiss the suit filed by the plaintiff. If the defendant admits the claim, the court will issue a decree under Order 9 Rule 8 against the defendant based on the defendant’s admissions and dismiss the case for the remaining portions of the claim.
If the case was dismissed the plaintiff can file a fresh suit or file a petition to set aside the order under Order 9 Rule 4
Nanda Dulal Pradhan & Anr. v. Dibakar Pradhan & Anr., 2022
The respondent failed to file the written statement after several notices and summons were duly served. Neither the defendants nor their legal representatives were present before the trial court. Thereafter, the trial court passed an ex parte order. The other defendants applied to Order 9 Rule 13 of the CPC to set aside the order, which was refused by the trial court and the High Court as well. The defendant appealed to the Supreme Court against the order of the subordinate court. However, the Supreme Court held in this case that the defendants were not allowed to file the written statement as they missed several opportunities, but they were permitted to participate in the suit, cross-examination, and make submissions on merit.
Vishwabandhu v. Sri Krishna & Anr., 2021
In this case, the defendant refused to accept the summons, an ex-parte decree was passed, and court proceedings were initiated against him. The suit property was put up for auction in which the appellant was the bidder. Later on, the defendant applied to Order 9 Rule 13 of the CPC. The Supreme Court held that if the defendant or duly assigned person refused to take any postal article containing a summons, it would be considered that the summons was duly served. Hence, the application is not allowed under Order 9 Rule 13.
Mrs. Ambika Murali v. Tmt. Valliammal & Anr. & Etc, 2021
In this case, the appellant, i.e., the landlord, initiates the proceedings against the respondents, i.e., the tenants, before the rent controller. The rent controller passes the ex parte order to deposit the arrears of rent. Since the tenants failed to comply with the order, the Rent Controller approved the eviction petition by issuing an ex-parte decree. The tenant applied to set aside the ex parte decree when the court’s administrator came to take possession of their shops. The tenant sought pardon for the delay of 175 days for setting aside the ex parte decree. The Madras High Court in this case held that the delay of 175 days was bona fide and it was satisfactorily explained before the court, hence the application was allowed.
N. Mohan v. R. Madhu, 2019
In this case, the respondent had filed a money recovery suit in Tiruchirappalli and the judge passed an ex parte decree as the appellant did not appear before the court. The appellant applied to Section 5 of the Limitation Act to accept the delay of 276 days in applying for Order 9 Rule 13 of the CPC. The appellant pleaded that the summons had not been served properly as his address had been changed. He did not receive the summons. The petition filed by the appellant had simultaneously been dismissed by the District Judge, High Court, and Supreme Court. He filed the first appeal under Section 96 (2) of the CPC in the Madras High Court, which was rejected, but the Supreme Court set aside the order passed by the High Court and allowed the appeal. The Court determined that the appellant must be given a chance to be heard even if it did not discover any flaws or malicious intent on his behalf.
The appearance of the parties in court is essential. The parties can present themselves or their legal representative in court to represent the case. If both parties were not present, the court could dismiss the suit. If the defendant ignores the court’s notices and fails to appear in court, the court will send the summons to the defendant. The court will pass an ex parte decree. Defendants have certain remedies against the ex parte decree. If the defendant proves sufficient grounds for non-appearance in court, the court will then set aside the ex parte decree. A fair hearing is the principle of natural justice. And the court will make sure that no injustice will be done to any of the parties. Hence, it is necessary to prevail so that both parties can get equal opportunities to present their case in court.
To access a draft application under this Order, click here
Frequently Asked Questions (FAQs)
What is the difference between a decree and a judgement?
A decree is defined under Section 2(2) of the CPC, whereas a judgement is defined under Section 2(9) of the Code. A judgement is a decision pronounced by the judge after hearing the arguments and examination of witnesses and evidence. A decree is an official order of the court which determines the rights of both parties after the judgement is held. Decrees are only passed in civil cases.
Does the doctrine of Res Judicata apply to ex parte decrees?
Res judicata restrains the party from filing a suit in the same court or a different court on the same issues and facts. It says that once the matter has been decided, it can not be raised again. An ex parte decree is a decision on the merits; it can serve as res judicata. The court that issues the decree examines the merits of the matter, renders a decision, and issues the decree.
- Decree Under CPC: Meaning, Types, Amendment & Differences (lawnn.com)
- Decree & Order – Meaning, Definition, Essential Elements And Types (lawcorner.in)
- Ex parte Decree and its remedies || Order 9 Rule 13 || CPC || (lawnotes4u.in)
- Ex Parte Decree (lawyersclubindia.com)
- ‘Ex Parte Decree’ Provisions within the Code of Civil Procedure
- Appearance and Non-Appearance of Parties || Order 9 || CPC || (lawnotes4u.in)
- Takawani, C.K. Civil Procedure, 8th Edition, (Reprint) 2018, Eastern Book Company.
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