ORDER IX RULE 13 CPC-SETTING ASIDE EX-PARTE DECREE

BY SHREYA PRIYADARSHNI

LEGAL INTERN, H.K. LAW OFFICES

INTRODUCTION

The term ‘decree’ literally means ‘an official order given by a government or a ruler. It also means an order having the force of law. The Code of Civil Procedure, 1908 (CPC) defines the term ‘decree’ under section 2(2). As per the Code of Civil Procedure, 1908 decree means “the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit.” 

There are ample of instances where defendant is not present at the time of hearing despite of summons and notice being served to the defendant. In such cases the court passes decree in absence of the defendant by relying upon the plaintiff’s version of the case and on the evidences produced by the plaintiff. Such decree which is passed against the defendant in absentia is called an ex-parte decree.

The Code of Civil Procedure, 1908 provides an opportunity to aggrieved defendant to put forth the reasons before the court which has passed an ex-parte decree against him, for his absence for setting aside the ex-parte decree in the interest of justice. The provision is given under Order IX Rule 13 of CPC. The article basically aims to cover the crux of the said provision with the help of interpretations and ruling given by Hon’ble Supreme Court of India in various case laws/judgements. 

Order IX Rule 13 of the Civil Procedure Code, 1908

Order IX Rule 13 CPC gives an opportunity to the aggrieved defendant to assert the sufficient cause for his absence, before the court which has passed an ex parte decree against him for setting aside the ex parte decree in the interest of justice. 

The said provision says that if an ex parte decree is passed against defendant in any suit then the defendant can apply to the court which has passed the ex parte decree for an order to set it aside. In a case where defendant satisfies the court that the summons was not duly served, or that he was prevented from appearing when the suit was called on for by any sufficient cause then the court shall make an order to set aside the decree against him upon such terms as to costs, payment into court or otherwise as it thinks fit. After passing an order for setting aside the ex parte decree the court shall also appoint a day for proceeding with the suit.

The first proviso of the order IX Rule 13 of the CPC says that the suit can be of such nature that it cannot be set aside as against such defendant but it may set aside as against all or any of the other defendants.

The second proviso of the Order IX Rule 13 of the CPC deals with the instance where defendant had notice of the date of hearing and he had sufficient time to appear and answer to the plaintiff’s claim but he did not appear at the time of hearing and filed an application to set aside an ex parte order against him on the ground of irregularity in the service of summons. In such cases the court shall not set aside a decree passed ex parte merely on the ground of irregularity in service of summons subject to the condition that the defendant had notice of the date of hearing and he had sufficient time to appear and answer to the plaintiff’s claim.

Moreover, the provision provides that if an appeal which has been filed against the ex parte decree under this rule and has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, then no appeal shall lie under this rule for setting aside the ex parte decree.

JUDGEMENTS/CASE LAWS

In the case of Ram Sagar and Ors. V. District Judge and Ors.[1] the hon’ble Allahabad High Court observed that “a plain reading of proviso of Order IX Rule 13 of C.P.C., shows that the irregularity in service shall not be a ground to set aside the ex parte decree or award and in case the Court is satisfied that the defendant was having notice of the date of hearing then the decree should not be set aside. 

In the case of Saket Kumar v. Nitu Kumari[2], the hon’ble Patna High Court observed that, “The law is well settled that in case of summons being not duly served, the limitation would run from the date of knowledge to the party who makes application for setting aside the ex-parte decree. Moreover, the court said that the suit may proceed ex-parte against the defendant, only when it is proved by the plaintiff to the satisfaction of the court that the defendant did not appear even though the summons was duly served.”

In the case of Sushil Kumar Sabharwal V. Gurpreet Singh and Ors.[3] the hon’ble Supreme Court observed that “the second proviso to Rule 13 of Order IX CPC added by the 1976 Amendment which provides that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. It is the knowledge of the “date of hearing” and not the knowledge of “pendency of suit” which is relevant for the purpose of the proviso aforesaid”.

Furthermore, in the case of A. Murugesan V. Jamuna Rani[4], the hon’ble Supreme Court reiterated the observations made in the case of G.P. Srivastava v. R.K. Raizada[5], and said that “Under Order IX rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the court that either the summons was not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of order 9 Rule 13 has to be construed as an elastic expression for which no hard-and-fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause’ for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in a case the other side can be compensated by adequate costs and the lis decided on merits”. 

In the case of Subodh Kumar V. Shamim Ahmed and others[6], the hon’ble apex court held that Application under Order IX Rule 13 CPC can be allowed only when sufficient cause is made out to set aside ex parte decree. 

Moreover, in the case of M. Krishnappa V. Menasamma[7], the hon’ble Karnataka High Court held that “if the defendants entered appearance and did not contest the case, then it will be treated as ex parte and therefore, the defendant can maintain a petition under Order IX Rule 13.

Recently, in a case of Vishwa Bandhu V. Sri Krishna and Anr.[8], the hon’ble Supreme Court held that if defendant had refused to accept summons, then he cannot seek setting aside of an ex parte decree. A bench of Justices Uday Umesh Lalit and S Ravindra Bhat further observed that as per Order V Rule 9 (5) of the CPC, inter alia, ‘if the defendant or his agent refuses to take delivery of the postal article containing the summons then the court shall declare that the summons was duly served on the defendant’.

 CONCLUSION

In light of the abovementioned provision and case laws it could be clearly transpired that the crux of Order IX Rule 13 is not only “whether the summons was duly served or not” but also “whether the defendant has knowledge of the date of hearing or not and whether he has sufficient time to present his case or not”. Also, the defendant has to show the ‘sufficient cause’ for his non-appearance to set aside an ex parte decree. Once the “sufficient cause” is made out, which impliedly includes ‘non-service of summons or ignorance of the date of hearing or insufficiency of time to present the case’, the court shall set aside the ex parte decree against the defendant under Order IX Rule 13 of the Code of Civil Procedure. 


[1] MANU/UP/0712/2004

[2] MANU/BH/1614/2016

[3] (2002) SCC OnLine SC 497

[4] 2019 SCC OnLine SC 200

[5] (2003) 3 SCC 54

[6]Civil appeal nos. 802-803 of 2021 (arising out of SLP (C) Nos. 18118-18119 of 2019 

[7] 2020 SCC OnLine Kar 1648

[8] Arising out of Special Leave Petition (Civil) D.No.1855 of 2020

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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