Ex-Parte Under Civil Procedure Code

Ex-Parte Under Civil Procedure Code

Author: Mr. Aditya Aryan, ICFAI Law School, Dehradun.

In the court of law, wherever there is a right and that right is violated when the parties have a remedy to exercise on the violating parties.

A legal maxim which defines the above words more accurately is “ubi jus ibi remedium” which states that where there is a right there is a remedy.

In this article, we will be dealing with the ex parte decree, its execution, remedies available, prevailing case laws and more.

Now starting with ex parte.

What actually ex parte is? What does it mean? Who can avail these decree?

Ex parte hails from latin language which means ‘by or for one party’ or ‘by one side’.

An ex parte decree is a decree passed in the non-appearance of the defendant. According to the principle of natural justice, a case must be decided in the presence of both parties and both parties should be given appropriate opportunity to present them. Though in some circumstances a court can award an ex parte decree. When the plaintiff appears and the defendant doesn’t, at the time when the suit is called out for hearing and the defendant is duly served with the summon of appearance, then the court may hear the suit ex parte and pass the decree against him. However these decrees are neither null nor void nor inoperative but are merely voidable and unless and until they are annulled on legal and valid grounds, they are proper, lawful, operative and enforceable like a bi-parte decree and has all the force of a valid decree.

However a judge is required to meet with all parties in a case and not with just one, there come circumstances where this rule doesn’t apply and the judge is allowed to meet with just one side, such as where a plaintiff requests an order or dismissal before the answer or appearance of the defendant.

There are several remedies available to the parties:

• Application to the court by which such decree is passed to set it aside: Order 9 Rule 13.
• Prefer an appeal against such decree: Section 96(2) (or file a revision under Section 115 where no appeal lies).
• Apply for review: Order 47 Rule 1.
• File a suit on the ground of fraud.  

These above-given remedies are synchronous and they can be prosecuted simultaneously or synchronously.

In the case of Ajudhia Prasad vs .Balmukund. It was held that “where two proceedings or two remedies are provided by a statute, one of them should not be taken as operating in derogation of the other.”

According to the Order IX Rule 13 of Code of Civil Procedure dealing with Setting aside of decree against the defendant can be entertained only in the following two grounds:

1. Where the summons was not duly served. The defendant was prevented from sufficient cause from appearing where the fact was called for hearing.

Although, this rule is available only if the person against whom the ex parte decree is passed on grounds of default of appearance as per Rule 6 Order IX. Under this rule, only the defendant-petitioner can avail of this remedy. Non- party to the suit cannot apply through this rule unless if he proves that his interest is affected by such decree.

1. Conditional Relief:

The Court on the satisfaction of the grounds may impose conditions for setting aside the decree. It may order for payment of costs or may ask the defendant to deposit the decretal amount or a part of it, or may direct him to furnish security or any other condition as the Court deems fit and appoint a day for proceedings of the suit.

The limitation period for filing an application for setting aside the decree is 30 days from the date of knowledge of the decree.

In Gauhati University v. Niharalal Bhattacharjee summon was served to the petitioner on May 28th, 1990 for an appearance on the next day. As per Rule 6 of Order V, there was a lack of sufficient time for appearance the suit was adjourned to July 19th, 1990 but the date was not communicated to the other party. The SC held that as the summons was not duly served the limitation began to run only when the petitioner had the knowledge of the order. Hence, as the application filed within the 30 day period the decree was set aside.

After the ex parte order is set aside, the suit is restored to file and parties are relegated to the position they occupied before the non-presence of the defendant, and the court will proceed with the suit de novo and decide on merits. If an application for setting aside is rejected an appeal lies against such order.

• An appeal against such decree: Section 96(2) (or to file a revision under Section 115 where no appeal lies)
• Apply for review: Order 47 Rule 1
• File a suit on the ground of fraud.

In the case of Sunderlal v. Nandramdas, it was observed that though the Act does not give any power of dismissal, it is axiomatic that no court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. This was approved in the case of Dr. P Nalla Thampy v. Shankar.

Suit – A suit to set aside an ex parte decree is not maintainable. But if an ex parte is alleged to have obtained by fraud, the defendant can file a regular suit to set aside such decree. It is a settled law that fraud vitiates the most solemn transactions. In such suits, the owner is on the party who alleges that the ex parte decree passed against him was fraudulent.

Revision – An order setting aside an ex parte is the “case decided” within the meaning of Sec.115 of the Code and is, therefore, revisable. A High Court may also exercise their supervisory jurisdiction under Art.227 of the Constitution in such appropriate cases.

Conclusion- The Civil Procedure Code is a vital instrument of the country today to tackle the problems in procedure regarding civil judicial administration. The Code has served the country in more ways than predicted by its makers. There have been various amendments and there is scope for new amendments in the Code. The conceptualization of appearance and non-appearance of parties have been given space in the Code respecting the principles of natural justice. Each party gets his rightful chance to defend himself and present his case before the court. The doctrine of fair hearing is also implied in this topic. Audi alteram partem which literally means “hear the other side” has everything to do with this portion of the Civil Procedure Code, 1908.

The defendant is served with the summon to appear before the court and submit to the jurisdiction of the court. The summons is a way of informing the defendant about the complaint by the plaintiff and the date of hearing of the suit. The defendant is bound by the summons and has to appear in the court either personally or through his legal representatives on the date prescribed in the summons. If the defendant fails to appear he should prove that there was “sufficient cause” for his non-appearance. There is no standard rule laid down for judging what is ‘sufficient’ and what is not. It depends on the facts and circumstances of the case. Order IX elaborates on the procedure to be adopted by the court and the course of law to be followed in different situations which have been dealt with in detail in this project. The concept of ex parte decree belongs particularly to Order IX of Civil Procedure Code, 1908 only.