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Ex Parte Decrees.
Ex Parte Decrees.
An ex parte decree is a decree passed in absence of the defendant where the plaintiff appears and
the defendant does not appear at the time when the suit was called upon for hearing and provided
that the summons were duly served to the defendant then the court can clear the matter ex party
and pass a decree against him. Such a decree is neither null or void not inoperative but is
voidable upon certain legal and valid grounds. The ex parte decree is proper like a bi parte decree
and has all the force of a valid decree. - Pandurang Ramchandra v. ShantiBai Ramchandra.
Remedies Available to the Defendant- The Defendant against whom an ex parte decree has been
passed
a. to apply to the court by which such decree is passed to get it set aside. -Order 9 Rule 13.
The above mentioned remedies are concurrent and they can be prosecuted simultaneoulsy.
Where two proceedings or two remedies are provided by statute one of them must not be taken
The Defendant Against whom an ex parte decree has been passed may apply for getting it set
aside. The expression defendant means any person adversely effected by such decree. But a
defendant against whom a suite has been dismissed cannot be said to be aggrieved and cannot
An application for setting aside the ex parte decree may be made to the court which passed the
decree against him. Where the decree is confirmed by a superior court an application may be
Under this rule the defendant may apply too set aside the decree upto the satisfaction of the court
on the ground -
a. The summons was not duly served. - The Suit which was declared as ex party due to the non
appearence of the defendant and such non appearance was attributed to the fact that the
summons were not served upto the satisfaction of the court the court may set aside the previous
order. The defendant has to submit that the summons was not received by him in accordance
b. He was prevented by any sufficient cause from appearing when the suit was called upon for
hearing . - The expression sufficient cause has ot been defined anywhere in the court but has to
defined as per each case. A party should ot be deprived of hearing unless there has been
something equivalent to misconduct or gross negligence on his part. If there are delaying tactics
and non co- operation on the part of the parties he cannot seek indulgence of the court. - Vijay
Kr. v. Kamla Bai. The only test to be applied for determining a sufficient cause is whether the
party honestly intended to remain present at the hearing of the suit and did his best to do so. -
Upon any two grounds the court may set aside the previous order of ex parte proceedings and
Power and Duty of the Court. - When an application for setting aside the ex parte decree is made
by the defendant the court should consider about the existence of sufficient cause attributing to
such non appearance. If the court find that there was a sufficient cause for non appearance it is
bound to set aside the decree. Any order for the same is a judicial order and thus must be
2. Sickness of Hearing.
a. Delaying Tactics.
b. Negligence of Party.
c. Counsel busy in some other court.
d. Mere thinking that the matter will be called upon for thinking.