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Setting aside decree ex parte against defendant

Code of Civil Procedure, 1908 – Order IX Rule 13 – Setting aside decree ex parte against defendant.

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; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

1[Provided further than no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.]

2[Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]

1. The proviso added by Act 104 of 1976, s. 59 (w.e.f. 1-2-1977).
2. Explanation ins. by s. 59, ibid. (w.e.f. 1-2-1977).


CASE LAW REFERENCE

The defendant was arrested in an unrelated case and detained in Jail. due to the detention, the defendant was prevented from effectively contesting and participating in the civil suit – The factum that the counsel for the defendant had applied for the certified copy would show that the counsel for the defendant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the defendant being incarcerated was unable to lead evidence and another chance should be given to the defendant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. M/s Garment Craft v. Prakash Chand Goel, JT 2022 (1) SC 146