EX P ARTE DECREE AND REMEDIES AVAILABLE IN CPC
Introduction
Where a defendant absents himself from court on date of hearing mentioned in the summons duly served on him, the court is empowered under Order 9, Rule 6(1)(a) to proceed ex parte and to pass an ex parte decree against such defendant thereon. However, the Code provides some remedies to such defendant against whom an ex parte decree is given. Remedies against ex parte decree
The remedies available against ex parte decree are:- (2000 SCMR 296) An application under Order 9, Rule 13 A review application u/s 114 An appeal u/s 96 A proceeding to set aside the decree on the ground that it has been obtained by fraud etc. u/s 12 An application for re-hearing of the matter on the ground of violation of the principles of natural justice (PLD 1972 Lah. 603 FB) A revision may also lie (1995 CLC 516) In appropriate cases the inherent powers of a court may also be attracted (PLD 2003 SC 625) or a writ may lie (1986 CLC 2515)
Grounds
The two grounds on the basis of which an ex parte decree can be set aside under Order 9, Rule 13 are:- (PLD 1979 SC 18)
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. T his question has to be decided on the basis of e vidence or affidavits. Summons not duly served Prior to proceedings ex parte, a court must record a declaration of due service under Order 5 (Issue and Service of Summons) rule 19 (Examination of serving officer), this is mandatory. Where there is nothing to show due compliance with rules 13 (Service on agent by whom defendant carries on business) and 20 (Substituted service) of Order 5, the decree should be set aside. Where the summons has not been duly served, the ensuing proceedings will be a nullity. Due service refers to service which effectively brings the claim to the knowledge of the defendant and is effected in accordance with the provisions of the code relating to service of summons and in time for the defendant to attend and at the proper address. By virtue of the proviso, 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.
Sufficient cause Where sufficient cause is shown, the decree shall have to be set aside. The term ‘sufficient cause’ is not susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases and each case is to be judged upon its particular circumstances, and where non-appearance is not intentional, a strict view should not be taken to put a party out of court. The term sufficient cause means beyond the control of a party and cannot include cases of extreme negligence. Upon such terms as to costs; etc The rule gives a wide discretion to the court in the matter of imposing conditions upon ordering the setting aside of an ex parte decree. A court can make an order of restoration subject to fulfillment of conditions, but it should clearly specify the consequences of non-fulfillment of conditions. The court can also extend the time for fulfillment of the conditions. 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. 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. Appeal The following types of orders can be passed under rule 13:
An order setting aside the decree which is not appealable nor can it be attacked under S. 105. An order setting aside the decree on certain terms which is by itself not appealable. An order rejecting an application under Order 9 rule 13 is dismissed on merits; it cannot be attacked under S. 105 before the court hearing an appeal against the decree. Pending proceedings to set aside the decree, execution can be stayed.
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.
