An ex-parte decree is a judgment passed by the court in the absence of one of the parties, typically the defendant. However, the law allows for such a decree to be set aside if the absent party can show sufficient cause for not appearing. This process ensures justice is served and the principle of natural justice is upheld.
Legal Basis: Order 9 Rule 13 of CPC, 1908
“In any case in which a decree is passed ex parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside.”
This provision gives the defendant a right to challenge an ex-parte decree and seek to re-open the case, provided valid grounds exist.
What is an Ex-Parte Decree?
An ex-parte decree is a decree passed in favor of the plaintiff when the defendant fails to appear before the court, despite being duly served with notice/summons.
Grounds for Setting Aside Ex-Parte Decree
The defendant must prove that there was “sufficient cause” for non-appearance. Common acceptable grounds include:
- Non-service of summons
- Improper service of summons
- Illness or accident
- Natural calamities
- Mistaken identity or address issues
- Administrative error (e.g., court staff not updating case status)
Case Law: Arjun Singh v. Mohindra Kumar (AIR 1964 SC 993) – The court stressed the need for bona fide and sufficient cause.
Procedure to File Application for Setting Aside Ex-Parte Decree
Step 1: Drafting the Application
- Mention details of the suit and decree
- Clearly state reasons for non-appearance
- Attach affidavit and supporting documents
Step 2: Filing the Application
- Must be filed in the same court which passed the ex-parte decree
Step 3: Notice to Plaintiff
- The court issues notice to the decree-holder (plaintiff)
Step 4: Hearing
- Both sides are heard, and the court examines whether the cause shown is sufficient
Step 5: Court Order
- If satisfied, the court sets aside the decree and restores the case to file
Limitation Period
- As per Article 123 of the Limitation Act, 1963, the time limit to file an application to set aside an ex-parte decree is: 30 days from the date of knowledge of the decree.
Delay beyond 30 days may be condoned under Section 5 of the Limitation Act, if sufficient cause is shown.
When Court May Reject the Application
- No sufficient cause shown
- Defendant intentionally avoided service
- Defendant had actual knowledge of the proceedings
- Application filed after unreasonable delay
- Matter already reached execution stage without protest
Case Law: Bhanu Kumar Jain v. Archana Kumar (2005) – Held that ex-parte decree cannot be set aside just because the defendant now wishes to contest.
Summary Table: Set Aside Ex-Parte Decree
| Aspect | Details |
|---|---|
| Governing Law | Order 9 Rule 13 of CPC |
| Who can apply | Defendant against whom ex-parte decree passed |
| Time Limit | Within 30 days of knowledge (Article 123, Limitation Act) |
| Relief sought | Recalling the ex-parte decree and reopening the suit |
| Grounds required | Sufficient cause for non-appearance |
| Rejection reasons | Willful absence, delay, absence of justification |
Difference: Appeal vs Application to Set Aside Ex-Parte Decree
| Aspect | Set Aside Application | Appeal |
|---|---|---|
| Provision | Order 9 Rule 13 CPC | Section 96(2) CPC |
| Who can file | Defendant absent during proceedings | Any party aggrieved |
| Purpose | Reopen suit and allow participation | Challenge merits of decree |
| Evidence | New facts allowed | Based on existing records |
| Time Limit | 30 days | 90 days |
A party may file both appeal and set-aside petition, but must choose one for relief (not both simultaneously).
