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query no. 2 judicials exams

Lawyer

Q:- i) An exparte decree is ordinarily to be set aside only as against the defendants against whom the decree has been ex parte and the suit to be revived only qua the defendant who applied for setting aside the exparte decree. COMMENT.

ii) What will be the fate of such an application if the Decree is indivisable in nature?

 

hint:- O.9 R.13 CPC :-)


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1) If the defendent satisfies the court that the sumons are not duly served or prevented to appear before the court on the day of hearing, at costs the court permits the defendent for proceedings of the day.

 

2)No Court shall set aside a decree passed ex parte merely on the ground of 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.

 
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Lawyer

m sorry, Mr. Parkash this is not the desired answer....you are requested to read the query again.

 
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A defendant for whose default of appearance an ex parte decree is passed can apply for setting aside the ex parte decree. The defendant has to satisfy the court that

(1) the summons was not duly served (2) he was prevented by any sufficient cause from appearing when the suit was called out for hearing. However where the defendant had adequate notice of the date of hearing of the suit and had sufficient time to appear and answer the plaintiff's claim the ex parte decree would not be set aside merely on the ground of irregularity in service. Sufficient cause has not been defined in the code but must be liberally construed. Necessary materials should be placed on record to show that the applicant was diligent and vigilant. Improper advise of advocate may be a good ground but cannot be accepted as a sufficent cause in all cases. The following have been held to be sufficient cause

1. bona fide mistake as to the date of hearing (2) late arrival of a train (3) inability on account of illness or accident (4) fraud of the opposite party (5) mistake of pleader in noting wrong date in diary (6) negligence of next friend or guardian in case of minor plaintiff or defendant.

II. As per the proviso where the decree is of such a nature that it cannot be set aside as against the applicant defendant only, the court may set it aside against the order defendants also.  It the following cases, the decree must be set aside as a whole

1. Where the decree is joint and indivisible (2) where the suit would result in two inconsistent decrees if the decree were not set aside against the other defendants also (3) where the relief to which the applicant is entitled cannot effectively be given otherwise than by setting aside the decree against the other defendants also. (4) where the decree proceeds on a ground common to all the defendants.


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Lawyer

thanks Mr. Menon for a far better reply.

 

m waiting for the future judges to respond....in fact the young guns should have fired by now :-)

 

pls do it quick....

 
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Student

 The provisions of Order 9 Rule 13 of the Code read as under:

 
 
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 were 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 here 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:
 
Provided further that 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
Explanation- Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant Bank has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree."
 
 
A reading of Order 9 Rule 13 of the Code would clearly show that under this provision it was clarified that an ex parte decree was ordinarily to be set aside only against the defendant against whom the decree was ex parte and the suit was to be revived only qua the said defendant applying for setting aside the ex parte decree. It is true that the heading of Order 9 Rule 13 of the Code starts with the expression "setting aside of an ex parte decree". But if we examine this provision under Order 9 Rule 13 of the Code as well as its proviso in depth and in detail, it would not be difficult for us to come to a conclusion that under Order 9 Rule 13, it has been clarified that an ex parte decree is ordinarily to be set aside only as against the defendants against whom the decree has been ex parte and the suit is to be revived only qua the defendant who applied for setting aside the ex parte decree. 
 
 
Let us now deal with the proviso to Order 9 Rule 13 of the Code. It provides that in cases where the decree is of such a nature that the same cannot be set aside only as against the defendant applying for setting it aside, the decree could also be set aside as against any or all of the other defendants.
ie. if the decree in question is one and indivisible and the decree is likely to result in two inconsistent decrees if the decree is set aside only against one of the defendants
 
The Hon’bleSupreme Court in
 Bank Of India vs M/S Mehta Brothers &Amp; Ors on 23 September, 2008,held that:
this proviso confers power on the court to set aside the entire decree if the court is of the view that the decree passed was of such a nature that the same could not be set aside only as against the defendant applying for setting aside the decree, the decree could also be set aside as against any or all of the other defendants. Therefore, this proviso clearly confers powers on the Court to set aside the entire decree where the said decree was of such a nature that it is expedient in the interest of justice to set aside the decree as against any or all of the other defendants also”.
 
After carefully examining the provision under Order 9 Rule 13 of the Code along with its proviso, the following, therefore, emerges:-
 
As noted herein earlier, the heading of Order 9 Rule 13 of the Code starts with "setting aside decrees ex parte" But, if we read the entire provision under Order 9 Rule 13 of the Code, it would be clear that the said provision provides that the decree must be ex parte against one defendant or ex parte against all the defendants. The proviso also does not provide that the decree can be set aside against the defendants, other than the applying defendant, only if it is ex parte against them also. The only requirement for the applicability of this order is that the decree should be ex parte against the defendant applying to have it set aside. Thus, the language of the order does not suggest that for the order to apply the decree must be entirely ex parte. 
 
Secondly, if the proviso was to apply only if the decree was ex parte against the other defendants also, that would have rendered the proviso practically infructuous, as in such a situation, the other defendants would have an independent right to have the decree set aside against them. In our view, the idea behind the proviso is that if the decree is being set aside as against some defendants, and the decree as against the other defendants is connected, interlinked or dependent on that part of the decree which is being set aside, the decree may have to be set aside as against the other defendants also.
 
 
 

 
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Student

Bank Of India vs M/S Mehta Brothers &Amp; Ors on 23 September, 2008



Attached File : 43 s mehta brothers & (1).pdf downloaded 100 times

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Student

 Kiran,

There appears to be  a problem in reading my answer from this page.So I've attached it in word 2003 format



Attached File : 2 answer for q 2.doc downloaded 95 times

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i).Defendant’s default appearance to the court if an exparte decree passed. The defendant can apply to set aside the exparte decree.

ii).The defendant has to show reasons to the court for setting aside exparte decree.

Reasons may be:
1. summons didn’t serve.
2. obstructing to appear in the court ( reasons have to mention)
3. On medical grounds
4. Natural calamities
5. Death of a family member

If the defendant have sufficient knowledge about date and time of hearing, can not appear in the court exparte decree can not set aside.

Shyamsunder SIngh vs Miss. Sujatha Singh, in the High Court of Delhi,

FAO No.320/2007

DATE OF DECISION: 15.11.2007

Mr.Sunder Shyam Singh ........Appellant

through: Mr.Rajeev Kumar, Adv.

VERSUS

Miss Sujata Singh @

Sukhwant Kaur and Anr. ........ Respondents

through: Mr.S.D.Dixit, Adv.

PRADEEP NANDRAJOG, J.(Oral)

1. Petitioner is aggrieved by the order dated 3.2.2007 as also the order dated 17.4.2007 passed by the learned Trial Judge.

2. Being defendant petitioner was proceeded ex-parte and suffered an ex-parte decree on 5.5.2006. He filed an application under Order 9 Rule 13 CPC on 19.8.2006 praying that for the reasons stated in the application the ex-parte Page 1of 5 decree be set aside. An application under Section 5 of the Limitation Act was filed accompanying the application under Order 9 Rule 13 CPC setting out the grounds on which the appellant wanted to show sufficient cause entitling him to the setting aside of ex-parte decree.

3. Vide order dated 13.2.2007 learned Trial Judge dismissed the application filed by the appellant under Order 9 Rule 13 CPC. He filed an application for review pointing out that his application seeking delay to be condoned was not considered.

He pointed out that his application under Order 9 Rule 13 CPC was dismissed vide order dated 3.2.2007 on account of delay. He stated that if his application underSection 5 was allowed, delay in preferring the application under Order 9 Rule 13 CPC would be condoned and in said eventuality, he would be entitled to a fair consideration on merits of his application. The review application was taken up along with application filed by the appellant under Section 5 of the Limitation Act. Both were dismissed vide order dated 17.4.2007.

4. At first blush it appears that the learned Trial Judge has apparently committed a technical error pertaining to the stage at which applications have been decided, but a deeper look shows that no error has been committed for the reason page 2 of 5 facts pleaded in the application under Order 9 Rule 13 CPC were pari materia with the facts pleaded in the application under Section 5 of the Limitation Act.

5. Relevant facts as can be culled out from the record of the learned Trial Judge are that the wife filed a suit seeking permanent alimony against the appellant. The suit was filed on 9.1.1998. With great difficulty appellant was served for 1.7.2001. He chose not to appear. He was proceeded against ex-parte. He moved an application under Order 9 Rule 7 CPC which was allowed on 2.4.2003. He was permitted to file his defence and participate in the proceedings. The suit filed by the wife came to be transferred to a different court on 6.11.2004 notifying that the matter would be taken up on 9.11.2004 before the transferee court. When said order was passed counsel for the appellant was present. Meaning thereby appellants counsel had notice of the date when transferee court had to hear the matter. But none appeared before the transferee court with the result that on 2.3.2005 the transferee court proceeded ex-parte against the appellant. Ex-parte proceedings continued till decree was passed on 5.5.2006.

6. According to the appellant he had lost contact with his lawyer and for 2 days was in judicial custody. He pleaded page 3 of 5 that he learnt about his being proceeded against ex-parte only on 11.8.2006 and that thereafter the application

under Order 9 Rule 13 CPC as also Section 5 of the Limitation Act was drafted and filed.

7. As recorded in the orders which have been challenged, a fact which is borne out from the record of the learned Trial Judge is that the appellant had inspected the court record on 27.1.2006. On said date, i.e. 27.1.2006, the matter had already been adjourned for further hearing on 17.2.2006. This date was mentioned by the appellant on the inspection form. Therefrom, the learned Trial Judge has concluded that the appellant was aware of 17.2.2006 being the next date of hearing when he inspected the court record on 27.1.2006. Learned Judge also opined that having inspected the court record appellant would be in the knowledge of the fact that on 2.3.2005 he was proceeded against ex-parte. Thus, his assertion in the 2 applications that he learnt about his being proceeded against ex-parte on 11. 8.2006 is not correct.

8. The inevitable conclusion therefrom would be that both for purposes of limitation as also showing sufficient cause for not appearing when decree was passed appellant would have no case whatsoever. page 4 of 5

9. Thus, I find no infirmity in either order dated 3.2.2007 or in the order dated 17.4.2007.

10. I clarify that if delay is not to be condoned in filing application under Order 9 Rule 13 CPC I need not even look to the order dated 3.2.2007.

11. The appeal is without merits.

12. It is dismissed.

13. LCR be returned forthwith.

PRADEEP NANDRAJOG, J.

page 5 of 5

 
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Lawyer

hi all,

 

this query has been adequately answered by Mr. Arun....pls read the judgment he has referred to, sufficient enough to answer the query.

 

Thanks


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