EX PARTE DECREE

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. An ‘Ex parte
decree’ is a decree passed against a defendant in absentia. Despite service of summons, where on
the date of hearing only plaintiff does and a defendant does not appear the Court may hear the
suit ex parte and pass a decree against the defendant. 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.

Order 9, rule 6(1) (a) states that:

WHERE THE PLAINTIFF APPEARS AND THE DEFENDANT DOES NOT APPEAR
WHEN THE SUIT IS CALLED ON FOR HEARING. The Rule further classifies this situation
into three distinct scenario.

When summons duly served. if it is proved that the summons was duly served, the Court may
make an order that the suit shall be heard ex parte.

When summons not duly served. if it is not proved that the summons was duly served, the Court
shall direct a second summons to be issued and served on the defendant.

When summons served but not in due time. if it is proved that the summons was served on the
defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the
summons.

Rule 7- Procedure where defendant appears on day of adjourned hearing and assigns good cause
for previous non-appearance.

Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or before
such hearing appears and assigns good cause for his previous non-appearance, he may, upon
such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had
appeared on the day fixed for his appearance.
Rule 8 - Procedure where defendant only appears

Where the defendant appears and the plaintiff does not appear when the suit is called on for
hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the
claim, or part thereof, in which case the Court shall pass a decree against the defendant upon
such admission, and where part only of the claim has been admitted, shall dismiss the suit so far
as it relates to the remainder.

Rule 9 - Decree against plaintiff by default bars fresh suit:

Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set
the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the Court shall make an order setting aside
the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.

No order shall be made under this rule unless notice of the application has been served on the
opposite party.

SETTING ASIDE DECREES EX PARTE

Under Rule 13 of ORDER IX—In any case in which a decree is passed ex parte against a
defendant, the defendant may apply to the Court by which the decree was passed for an order to
set it aside; and if he satisfies the Court that

 That the summons was not duly served, or

 That the defendant was prevented by sufficient cause from appearing when the case was
called on for hearing.

If either of these conditions is satisfied, the court must set aside the decree and where these
conditions are not satisfied the decree cannot be set aside.
an ex parte decree will not be set aside on the ground of irregularity in the service of summons,
when the court for reasons to be recorded, is satisfied, that notwithstanding such irregularity, the
defendant had knowledge in sufficient time to appear on that date and answer the claim.

R 14. No decree to be set aside without notice to opposite party.—No decree shall be set aside on
any such application as aforesaid unless notice thereof has been served on the opposite party.

In Gauhati University v. Niharalal Bhattacharjee, summon was served to the petitioner on May

28th, 1990 for appearance on the next day. As per Rule 6 of Order V as there was 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
applicant filed within the 30 day period the decree was set aside.

Effect of setting aside

Upon setting aside of an ex parte decree, the status quo ante is restored and the trial commences
de nova from the stage at which the proceedings were taken ex parte. However, where the decree
is set aside on the ground that the claim is fraudulent, the suit cannot be restored and tried.

Remedies Against Ex Parte Decree

(1) An Application Under Order 9, Rule 13,

Order 9 Rule 13 states that while setting aside ex-parte decree, the defendant may apply to
the Court by which the decree was passed for an order to set it aside and if the Court is
satisfied that the summons were not duly served, or that he was prevented by any sufficient
means from appearing when the suit was called on for hearing, the Court may make such
order setting aside the decree against him as it thinks fit, and shall appoint a day for
proceeding with the suit, provided that the decree was of such a nature that it could not be set
aside as against such defendant but it may be set aside as against all or any of the other
defendants also.

(2) Appeal Under Section 96

Section 96-Appeal from original decree
An appeal may lie from an original decree passed ex parte
Unless expressly provided, appeal lies from any decree passed by the court. In cases, where the
value of suit does not exceed Rs.10, 000 appeal can only be filed on question of law. When a
decree has been passed against the Defendant as Ex-Parte appeal lies. In cases headed by two or
more judges, the majority decision shall prevail. In case there is no majority, then the decree of
lower court shall be confirmed.

(3) A Review Application Under Section 114 of C.P.C.

Section 114 states that-
Review- Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal
has been preferred.
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of
judgment to the Court which passed the decree or made the order, and the Court may make such
order thereon as it thinks fit.

Dismissal of setting aside application

In appropriate cases restoration can be made u/s 151. An appeal may lie against the dismissal of
the application in default.

LIMITATION
An application under Order 9 rule 13 must in accordance with the bounds of Art. 164 of the
Limitation Act 1908 be made within 30 days of the decree.

Revision
An order setting aside an ex parte decree is not a decree. A revision against the order may lie
if the conditions of S. 115 are satisfied, as for instance, where the order is contrary to the
provisions of Order rule 13, or where the court has disposed of the application upon a
consideration of the merits of the decree, or has refused to set aside the decree despite the fact
that summons was not duly served or has disposed of the matter on an erroneous view regarding
limitation etc. However, no revision will lie if an alternate remedy is available.
Res Judicata under Code of Civil Procedure, 1908
Section 11 of CPC embodies the doctrine of res judicata or the rule of conclusiveness of a
judgement, as to the points decided either of fact, or of law, or of fact and law, in every
subsequent suit between the same parties. It enacts that once a matter is finally decided by a
competent court, no party can be permitted to reopen it in a subsequent litigation. In the absence
of such a rule there will be no end to litigation and the parties would be put to constant trouble,
harassment and expenses.

Ex parte decree as Res Judicata

In Re: Sanrendranath Bal (2010), The court held that doctrine of Res Judicata is applicable on
order 9 ( rules 1,3,4 and 9).

An ex parte decree, unless it is set aside, is a valid and enforceable decree. However, the real test
for res judicata is whether the case was decided on merits. The real test for deciding whether the
judgment has been given on merits or not is to see whether it was merely formally passed as a
matter of course, or by way of penalty for any conduct of the defendant, or is based upon a
consideration of the truth or falsity of the plaintiff's claim, notwithstanding the fact that the
evidence was led by him in the absence of the defendant. Thus, a decree may not act as res
judicata merely because it was passed ex parte. It therefore acts a res judicata.