An ex parte decree is a decree passed when the defendant does not appear on the day the suit is heard, after the court is satisfied that the summons was duly served. The remedy is an application under Order IX Rule 13 of the Code of Civil Procedure 1908 to set the decree aside, on one of two grounds: that the summons was not duly served, or that the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing. If the court is satisfied, it sets aside the decree on such terms as it thinks fit and fixes a fresh date to hear the suit.
When this matters
This matters to anyone who learns that a suit was decreed against him without his ever appearing, and to a defendant served by substituted means who never actually saw the summons. An ex parte decree can be executed, so the property and accounts of the defendant are exposed from the moment it is passed. Order IX Rule 13 gives the defendant a route back into the suit, provided he acts on the right ground and without delay, and it is why a defendant should not treat a decree passed in his absence as the end of the matter.
A civil litigation lawyer can test which ground fits and draft the application; where the decree is a money decree already under execution, recovery and execution work overlaps with the defence.
How an ex parte decree happens
- The suit is filed and summons is issued to the defendant.
- If the defendant does not appear on the day fixed while the plaintiff appears, and the court is satisfied that the summons was duly served, the court may proceed to hear the suit ex parte, under Order IX Rule 6.
- The ex parte decree is then passed on the evidence the plaintiff produces.
- The usual causes are a summons sent to an old or wrong address, service by substituted means such as publication that the defendant never saw, a locked or vacant house, a family member who did not pass on the papers, illness, or an advocate who failed to appear.
The application under Order IX Rule 13
The two grounds are alternatives, and the applicant should plead the one that fits his facts:
- The summons was not duly served. Show that it was never served on you, or was served improperly or at an address you had already left, and that you came to know of the decree only later.
- You were prevented by sufficient cause from appearing. Sufficient cause covers serious illness, a bereavement, an accident, absence from the jurisdiction, or a genuine default of the advocate that the party could not have foreseen, provided it is explained and is not mere negligence. The court weighs the explanation and the applicant's diligence.
The proviso to the rule requires that no decree be set aside on either ground unless notice has been served on the opposite party, so the plaintiff is heard before the decree is undone. The application is supported by an affidavit and must set out the facts constituting the ground, not a bare denial. A model application is available among the civil litigation formats.
Stay of execution
An ex parte decree can be executed while the application is pending, so the application usually carries a prayer for stay of execution. The court may stay execution pending disposal on terms, applying the same principle that governs a stay of a decree under appeal: the applicant shows a prima facie ground and that he would suffer irreparably if the decree is executed before the application is heard. Ask for the stay in the same application, not as an afterthought, and mention any attachment or sale already begun.
Limitation for the application
The Limitation Act 1963 prescribes a short period for an application to set aside an ex parte decree. Where the application rests on the defendant's non-appearance, time runs from the date of the decree. Where it rests on non-service of summons, time runs from the date the applicant came to know of the decree. The period is brief, so the applicant should file as soon as he learns of the decree, and any lapse must be explained in the application itself. The court can condone delay, but the explanation must be credible.
What the applicant must place on record
- A copy of the decree and the plaint, and the order showing that the suit was heard ex parte.
- The summons or its return, the postal cover, the tracking record or the publication, showing how service was attempted.
- Proof of the applicant's correct address at the material time, such as a rent agreement, electricity bill or address proof, where non-service is the ground.
- Medical certificates, travel records or other material supporting the ground of sufficient cause.
- An affidavit verifying the grounds, the application with the prayer for setting aside, and the prayer for stay of execution.
The appeal route
There are two remedies and they are not interchangeable. An order setting aside, or refusing to set aside, an ex parte decree is appealable under the Code. Rather than, or in addition to, the Order IX Rule 13 application, the defendant may appeal against the ex parte decree itself under the provisions governing appeals from original decrees, where the decree is open to challenge on the merits or on the ground that service was bad. The safer course is usually to file the Order IX Rule 13 application first and keep the appeal right in view, because the appeal has its own limitation and can be lost while the application is pending.
Common questions
What is sufficient cause?
It is an elastic expression. The court asks whether there was a genuine and substantial reason for the non-appearance and whether the applicant was diligent. Serious illness, a bereavement, absence from the country, or an advocate's default that the party could not have foreseen are typical. Bare carelessness is usually not enough, and the applicant must explain what happened rather than merely assert it.
Can I set aside the decree because my advocate did not appear?
You may, if you show that the default was not your own and that you were diligent in instructing the advocate. Courts are reluctant to let a party suffer for an advocate's mistake, but they also expect the party to show he did what a reasonable litigant would do. The ground must be pleaded with particulars.
Do I have to deposit anything to have the decree set aside?
The court may set aside the decree on such terms as to costs, payment into court or otherwise as it thinks fit. A condition to deposit part of the decretal amount or to furnish security is within the court's power, and the applicant should be ready to meet reasonable terms.
Can the decree be executed while my application is pending?
Yes, unless a stay is granted. That is why a stay application should accompany the Order IX Rule 13 application. If execution has already begun, the applicant should mention the attachment or sale proceedings and ask the court to protect his position.
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