Ex-parte decree
C. P. CHUGH
(Querist) 05 March 2012
This query is : Resolved
In one of my case a suit for recovery was decreed exparte against me. I came to know of decree only when court clerk came for execution of decree. I had never received any summon/notice of the case. On inspection of file i noticed that on two occasions notice were issued. In the first notice, server reported out of station and in the second notice he reported refused to receive. on this the court proceed exparte against me and passed a decree. I filed application for set-aside of exparte decree, which is under consideration of the court. What are releif available to me and what are chances of the same being set-aside.
Thanks
Adv.R.P.Chugh
(Expert) 06 March 2012
There are good chances of it getting set aside - this appears to be a case of process server acting in collusion with the plaintiff. You were not served properly and faced an adverse decision in absenti. It's a negation of audi alteram partem/natural justice. If argued reasonably well - you are sure to get it set aside. Try getting the court to call process server and cross him. Read Or.5 again there are a number of safeguards on how the service is to be effected - under R.20 the court should have done substituted service (Chaspi)/Newspaper Ad which does not seem to be the case here.
Deepak Nair
(Expert) 06 March 2012
Dear CP Chugh Sir,
You are well advised by Bharat Chugh. There are bright chances of setting aside the ex-parte. Even though "refused" is valid service, you can get the order set aside if you are able to convince the court.
Are you, the above 2 gentlemen, realted to each other in any way??
Asking just out of curiosity.
ajay sethi
(Expert) 06 March 2012
court will set aside exparte decree subject to terms . you may have to deposit decreetal amount in court .
you have to convince courtthat summons were not served upon you .
C. P. CHUGH
(Querist) 06 March 2012
Dear Mr Nair,
Thanks for your valuable suggestions. I would love to see Mr Bharat Chugh, some time, but for your information, being professional brothers, we are definitely related to each other. However, personally i have never seen Mr Bharat and are not in any kind of relation.
Thanks
venkatesh Rao
(Expert) 06 March 2012
Very few are the instances where any court ahs refused to set aside exparte decree where the defendant has not put in his appearance. In your case, your timely action to have filed application as soon as lerarning about the decree adds flavor to your case. Courts are there to render full justice and not to dispose of somehow. You should argue on the line that no harm or loss would be caused to the plaintiff if the suit were to be heard and decided on merits. Good luck.
