inherent power to set aside ex party decree

Section 151 CPC has its roots in the theory of necessity is the mother of all invention, but this invention should not be to refashioned the exixting matter which would anount to refashioning it or to result in conflict with the existing matter, or in other words amounting to rewriting the CPC. There has been lots of conflicting views among the different High Courts in the matter of exercise of inherent power of the court to set aside ex-parte order. But this is covered by Order IX Rule 13 and Court can not set aside ex parte order under Section 151 of the CPC, as it is covered by Order IX Rule 13.

Power to review of its own order by any court, Tribunal judicial or semi judicial authority is not an inherent . It must flow from some source of power i.e. statue. However where there is a procedural wrong court can  set aside that worng by reviewing  its order. A person should be heard before he is proceeded against is a 'procedure' An ex-parte order without hearing the party shall be procedural wrong or where opportunity of hearing is given to the party but for sufficient reasons he is unable to attend , ex-parte order can be set aside. It will be upon the party to justify and convince the court that he was prevented from attending a hearing due to suffcient and valid cause. An application to set aside ex-parte should be moved immediately after the knowledge of ex-parte order. 

I suggest that  you go through ta recent judgment of  Supreme Court in the matter Rabinder Singh vs. Financial Commissioner decided on 14th May 2008.  

Generally courts do not exercise inherent power when there is a special provision to grant a relief. If your query is about exparte decree passed in a civil suit, it can be set aside U/Or.9 rule 13 of the C.P.C.

thank you all for a clear conseption and discussion on the subject.i could understand from replies---since the Codemakes specific provision for setting aside ex party degree,no inherent power could be exercised to set aside such decree.hope you mean that in your discussion.query thus resolved.drscpratihar

Dear Sir,

   after a long discussion and viewing suggetions on your querry. I also agreed with the same but with different opinion, that the Court even U/S 151 of C.p.c has power to set aside even a exparte decree but in that case the person seek the relief must show his part with documentary evidences as well as on facts that great hardship and injustice is caused to the party if the same is not set aside. and parusal of the record if court deems fit set aside the same with condition.

Dear Sir,

   after a long discussion and viewing suggetions on your querry. I also agreed with the same but with different opinion, that the Court even U/S 151 of C.p.c has power to set aside  a exparte decree but in that case the person seek the relief must show his part with documentary evidences as well as on facts that great hardship and injustice is caused to the party if the same is not set aside. and on parusal of the record, if court deems fit set aside the same with condition.

sir, i saw the discussion only now. It is correct that sec 151 will not apply when there is or 9 r 13 cpc, but when two persons collude together and get a decree by remaining exparte in respect of the property  of a 3rd party, the said 3rd party can invoke sec 151cpc and get the exparte decree set aside. Simultaneously he can also file petition to implead himself as a defendant in the suit under or 1 r10cpc. hope the scope of sec 151 in setting aside the exparte decree is clear and complete. also refer 2001-3-CTC 452 judgement of madras HC.

 

 

 

 

 

 

 

 

 

 

 

 

 

sir , last discussion is another horizon.  i shal br grateful if you can give a citation of apex court covering aforementioned subject.drscpratihar