In the court of law, wherever there is a right and that is violated then the parties have remedies to exercise on the violating parties.
A legal maxim which better defines the above sentence is “ubi jus ibi remedium” which quotes “where there is a right there is a remedy”.
In this article, we will be exploring the ex parte decree, its execution, remedies and the prevailing case laws.
What actually ex parte is? What does it states? Who can avail this decree?
Ex parte hails from the latin language which means ‘by or for one party’ or ‘by one side’.
An ex parte decree is a decree which is passed in the non-appearance of the opposition. As per the principle of natural justice, any case must be decided with presence of both the parties and both the parties should be given proper opportunity to present them. However in certain circumstances a court can pass an ex parte decree. When one of the parties appears and the other doesn’t, at the time when the case is called out for hearing and the opposite party is duly served with the summon of appearance, then the court may hear the case ex parte and order the decree against him. Though these orders are neither null nor void nor inoperative but are just voidable and unless and till the time they are annulled on legal and valid grounds, they are proper, lawful, enforceable and operative like a normal decree and have all the force of a valid decree.
Though a judge is required to hear all the parties of the case and not with just one, there comes circumstances where this rule does not apply and the judge is allowed to meet with just one party of the case, such as where a plaintiff requests an order or dismissal before the answer or appearance of the defendant.
There are certain remedies which are available to such parties:
- Application to the court by which any such order is passed to set it aside: Order 9 Rule 13.
- Preferring an appeal against such decree: Section 96(2) (or file a revision under Section 115 where no such appeal lies).
- Apply for review: Order 47 Rule 1.
- File the suit on the ground of fraud.
The above-mentioned remedies are coexisting and they can be conducted at once or synchronously.
In the case of Ajudhia Prasad vs .Balmukund[i]. It was stated that “where two proceedings or two remedies are provided by the statute, then one of them should not be taken as operating in detraction of the other.”
According to Order IX Rule 13 of Code of Civil Procedure, which deals with Setting aside of decree against the opponent can only be entertained in the following two grounds:
When the summons was not appropriately served. The opponent was prevented from adequate cause from appearing when the fact was called for hearing.
However, this rule is only available if the person against whom such ex parte decree is passed on grounds of absence of appearance as per Rule 6 Order IX. Under this rule, only the opponent-petitioner can avail this remedy. Non- party to the suit cannot apply via this rule unless he proves that his interest is also affected by such decree.
The Court on the satisfaction of such grounds may enforce conditions for setting aside the order. It may command for payment of costs or might ask the opponent to deposit the decretal amount or to deposit a part of it, or may order him to provide security or any other condition as the Court thinks fit and just and appoint other day for the proceedings of the suit.
The limitation period for filing the application for setting apart the order is 30 days from the date of knowledge of the order.
In Gauhati University v. Niharalal Bhattacharjee[ii] summon was served to the petitioner on May 28th, 1990 for the appearance on next day. As per Rule 6 of Order V, as there was a lack of ample time, the appearance for the suit was adjourned to July 19th, 1990 but the date was not communicated to the opposite party. The SC stated that as the summons was not appropriately served the limitation began to apply only when the petitioner had the knowledge of the order. Therefore, the decree was set aside.
After the ex parte decree is set aside, the suit is again restored to file and parties are demoted to the position they held before the non-presence of the opposite party, and the court will take action with the suit de novo and determine on merits. If the application for setting aside the order is rejected then an appeal lies against such order.
An appeal against such order: Section 96(2) (or to file for a revision under Section 115 where the appeal does not lie)
Apply for review: Order 47 Rule 1
File a suit on the ground of fraud.
In the case of Sunderlal v. Nandramdas[iii], it was held that, even though the Act doesn’t give any power of dismissal, it is undeniable that no court or tribunal is presumed to continue a proceeding before the party who has moved it has neither appeared nor cared to remain present. This was reiterated in the case of Dr. P NallaThampy v. Shankar[iv].
Suit – A suit to set apart an ex parte order is not maintainable. But if an ex parte is claimed to have obtained by fraud, then the opposite party can file a regular suit to set apart such decree. It is a well settled law that fraud annuls the most solemn transactions. In such cases, the burden of proof is on the party who claims that the ex parte orders passed against him was fraudulent.
Revision – An order setting apart an ex parte is the “case decided” within the meaning of Section -115 of the Code and therefore is revisable. A High Court can also exercise their supervisory jurisdiction under Article – 227 of the Constitution in such cases.
The Civil Procedure Code is a important instrument of the country today to block the problems in procedure concerning civil judicial administration. The Code has benefitted the country in more ways than assumed by its makers. There have been several amendments and there is still scope for new amendments in the Code. The conception of appearance and non-appearance of parties have been inserted in the Code respecting the principles of natural justice. Each party gets their rightful chance to defend themselves and present their case before the court. The doctrine of fair hearing is also implied within this topic. Audi alteram partem which literally means “hear the other side” has literally everything to do with this part of the Civil Procedure Code, 1908.
The opponent is served with the summon to appear before the court and submit the jurisdiction of the court. The summons is a way of informing the opposite party about the complaint by the plaintiff and the date of hearing of the suit. The defendant is confined by the summons and has to appear in the court either personally or through his representatives on the date mentioned in the summons. If the defendant ceases to appear he should prove that there was “sufficient cause” for his absence. There is no standard rule or formula laid down for judging what is ‘sufficient’ and what is not. It depends upon the facts and circumstances of the case. Order IX defines the procedure to be adopted by the court and the course of law to be followed in different circumstances which have been dealt already with detail in this article. The concept of ex parte decree belongs particularly and specifically to Order IX of Civil Procedure Code, 1908 only. But it also to be noted that this concept is extended to several independent legislations.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
[i] (1886) ILR 8 All 354
[ii] JT 1995 (8) 206
[iii] AIR 1958 MP 260
[iv] AIR 1984 Sc 135