An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite service of summons, where on the date of hearing only plaintiff does and a defendant does not appear the Court may hear the suit ex parte and pass a decree against the defendant. The legal validity, enforceability and operation of such decree is similar to any bi-parte decree.
The article critically analyses various provisions in the Code of Civil Procedure, 1908 pertaining to ex parte decree. Part I of the article enumerates the nature of an ex parte decree and cause of an ex parte decree. Part II titled Relief Available Against an ex parte deals with various remedies available to the person against whom an ex parte decree is passed and the abuse of such remedies. Part III titled Sufficient Cause for Non-appearance analyses various instances and circumstances where non-appearance of the party is excusable. Part IV titled Ex Parte Decree obtained by Fraud deals extensively with one of the remedy available against an ex parte decree.
Hearing the Suit Ex- Parte
I. (A) Decree When Ex Parte:
Ascertaining the nature of the decree whether it is an ex parte decree is a mixed question of law and fact. Records of the Court and circumstances under which decree was passed show the absence of the particular defendant at the time of hearing, the decree must be taken as ex parte in spite of the fact that decree mentions his presence. A decree based on a compromise cannot be treated as an ex parte decree and consequently Rule 13 Order IX does not apply.
I. (B) Passing An Ex Parte Decree:
As per Rule 1 of Order VIII C.P.C the defendant has to submit a written statement in 30 days from the date of service of summons. However, in exception circumstance not more than 90 days from the date of service of summons. If the defendant fails to submit in such period the Court on the basis of facts can adjudge the matter. A decree passed under Rule 10 of Order VIII for the defendant’s default in filing a written statement is nevertheless an ex parte decree, which is subject to Rule 13 of Order IX. If as a result ex parte decree is passed by the competent Court despite due notice to the party, there no failure of natural justice.
Non-appearance of one of the party on the date of hearing does not necessarily entail that an ex parte decree would follow. If the evidence adduced does not support the claim of the plaintiff, the Court cannot pass an ex parte decree. However, this is qualified as there is an obligation on the Court to weigh the merits of the case and consider whether it is a fit case for granting such decree.
Reliefs Available Against An Ex Parte Decree
A party against whom an ex parte decree is passed can seek relief by the following ways:
Set Aside: Applying to the Court which has passed such decree to set aside the decree.
Appeal: Preferring an appeal against the decree.
Review: Applying for revision ; and
Fraud: Suit on fraudulent grounds.
All the remedies are concurrent and can be prosecuted concurrently.
Setting Aside of the Ex Parte Decree: Application under Order IX Rule 13 of Code of Civil Procedure dealing with Setting aside of decree ex parte against the defendant can be entertained only the following two grounds:
Where summons were not duly served
Where defendant was prevented from sufficient cause from appearing where the fact called for hearing.
However, this rule is available only if the person against whom the ex parte decree is passed on grounds of default of appearance as per Rule 6 Order IX. Under this rule only the defendant-petitioner can avail this remedy. Non- party to the suit cannot apply through this rule unless if he proves that his interest is affected by such decree.
The Court on satisfaction of the grounds may impose conditions for setting aside the decree. It may order for payment of costs or may ask the defendant to deposit the decretal amount or a part of it, or may direct him to furnish security or any other condition as the Court deems fit and appoint a day for proceedings of the suit.
The Courts have wide discretion for imposing terms and conditions on the defendant. However, conditions imposed be reasonable and should not be harshly excessive. They should exercise discretion reasonably and judicially and not arbitrarily or capriciously. Superior courts can set aside such terms and conditions if are onerous or unreasonable. Non-compliance with any of the conditions would result in dismissal of the application for the restoration of a case.
The Supreme Court held that the terms imposed should not be onerous or vague nor should they have the effect of prejudging the controversy involved and of practically decreeing the suit even though the ex parte order is set aside. The terms should be based on facts and circumstances of that particular case. The terms should not be such that defendant ends up in a worse position than if he had not approached the Court for setting aside the decree. The trial court set aside ex parte order on a suit involving eviction and recovery of arrears condition that the tenants deposit monthly lease amount in the Court. On facts the Supreme Court held that the conditions imposed were too onerous, vague and lack clarity