Ex Parte Decree | 07 Sep 2023

Decree

According to Section 2(2) of the Civil Procedure Code, 1973 (CPC), Decree means the
formal expression of an adjudication which, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the suit.
Decree may be either:
Preliminary Decree: When further proceedings have to be taken before the suit
can be completely disposed of.
Final Decree: When the adjudication completely disposes of the suit.
Deemed Decrees: By legal fiction, certain adjudications are deemed to be decrees
under this code such as-
Decree of rejection of a plaint
Decree of determination of any question within Section 144 (Application for
Restitution)
Following adjudications are not deemed to be decrees under this code.
Any adjudication from which an appeal lies as an appeal from an order
Any order of dismissal for default

Ex-Parte Decree

It is an exception to the general rule that an adjudication shall be pronounced in the

presence of both the parties.
It is a decree in absentia.
It is pronounced if on the date of hearing the plaintiff is present, and the defendant is
absent.

When is an Ex-Parte Decree Passed

CPC provides for passing of an Ex Parte Decree wherever the presence of the defendant is
required under the code and the defendant fails to appear.
Following are the instances where the court can pass an Ex Parte Decree:

1. Order 8, Rule 10

Rule 1 of Order 8 of CPC states that the defendant shall submit its written statement
within 30 days from the date of service of summons.
This time period of 30 days can be extended by the court to not more than 90 days
from the date of service of summons.
If the defendant fails to submit the written statement in such period, then the Court,
under Rule 10 of Order 8, has the discretion to pass an Ex-Parte Decree.

2. Order 9, Rule 6

This rule provides that the Court may proceed to try the case Ex-Parte, and pass an Ex
Parte Decree in the same if:
On the day fixed in the summons for the defendant to appear, and answer, the
plaintiff appears, and the defendant does not appear.
 It is proved that the summons was duly served in sufficient time to enable the
defendant to appear and answer.

Remedies Against An Ex Parte Decree

Once an Ex Parte Decree has been passed against a judgement debtor, he/she can
undertake any of the several remedies available to him under the code.
CPC provides the following remedies against an Ex-Parte Decree:

1. Setting Aside

Order 9, Rule 13 of the CPC, provides for the setting aside of the Ex-Parte decree passed
against the defendant.
Defendant against whom an Ex-Parte decree has been passed 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:
The summons was not duly served, or
He was prevented by any sufficient cause from appearing when the suit was
called on for hearing.
If either of the above two conditions are satisfied, then the Court shall make an
order setting aside the decree as against such defendant.

2. Conditional Setting Aside of Decree

Court may, in its discretion, while setting aside a decree impose such terms as to costs,
payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding
with the suit.
Rule 14 of the Order 9 states that no decree is to be set aside without furnishing
notice to the opposite party.

3. Appeal

According to Section 96(2) of the Code, an appeal may lie from an original decree
passed ex parte.

4. Review

A review under Section 114 of the code can be made against a decree passed Ex-Parte.
Section 114 states that 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.

Case Law

In the case of Bhanu Kumar Jain v. Archana Kumar & Anr (2004), the Apex Court set aside an
Ex-Parte decree on the ground that the defendant had sufficient and reasonable grounds
for not being able to attend the hearing of the suit on the day fixed in the summons.