APPLICATION FOR SETTING ASIDE EX-PARTE DECREE

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This article is written by Deepanshi Tiwari of 7^th Semester of BALLB (Hons.) Shri Ramswaroop memorial university, Lucknow.

ABSTRACT

The application for setting aside an ex-parte decree is a crucial legal remedy available to parties who have been adversely affected by a court’s decision made without their presence or knowledge. This abstract provides an overview of the topic, highlighting the key aspects to be covered in the article.

This article explores the process and grounds for filing an application to set aside an ex-parte decree. It begins by defining an ex-parte decree and its implications on the affected party. The article delves into the various legal grounds that can be used to challenge an ex-parte decree, such as lack of notice, absence of proper service, fraud, or misrepresentation.

Furthermore, it examines the procedural steps involved in filing an application to set aside the decree, emphasizing the importance of adhering to the relevant rules and regulations governing the process. The burden of proof required to successfully set aside an ex-parte decree is also discussed, including the level of evidence and standard of proof that must be met.

To provide practical insights, the article analyzes notable case law examples where ex- parte decrees were successfully set aside, unraveling the legal reasoning behind these decisions and highlighting key factors that influenced the outcomes.

Overall, this article aims to equip individuals and legal professionals with a comprehensive understanding of the application process for setting aside an ex-parte decree, emphasizing the significance of timely and well-prepared applications in seeking justice and safeguarding the rights of affected parties.

Keywords:

Application, Setting aside, Ex-parte decree, Legal remedy, Court decision, Absence of presence, Lack of notice, Proper service, Fraud, Misrepresentation, Procedural steps, Rules and regulations, Burden of proof, Level of evidence, Standard of proof, Case law examples, Legal reasoning, Timely application, Well-prepared application, Justice Rights protection, Affected parties.

INTRODUCTION

The parties’ appearance or absence in a civil lawsuit is a crucial component that determines the outcome of every case. Simply failing to appear in court on a scheduled day may result in a decision that is unfavorable to the non-appearing party. The Civil Procedure Code of 1908’s general principles are based on the idea that no legal proceedings should be performed that would be harmful to the interests of any of the parties to the lawsuit. The parties to the lawsuit have a legal obligation to appear before the court on a due date that has been established by the court. In the event that one or more parties to the lawsuit fail to present, the court’s decision may be in favor of the party that does show up.

However, there are cases where a lawsuit is decided regardless of whether any of the parties are present on the due day. The non-appearing party may then refile the lawsuit in accordance with the guidelines of the Civil Procedure Code of 1908 to protect its interests. In this article we are going to discuss the procedure which any party to the suit can seek for setting aside ex-parte decree.

CONSEQUENCES OF APPEARANCE AND NON-APPEARANCE OF THE PARTIES

Order IX of the Civil Procedure Code of 1908 contains conditions pertaining to the consequences of the parties’ appearance and non-appearance in the lawsuit.

The guidelines for the parties to the lawsuit under order IX of the CPC with regard to their appearance and non-appearance are as follows:

Rule 2- the consequences of non-deposition of fees by the plaintiff.
Rule 3 and rule 4- Consequences of non-appearance of both the parties to the suit.
Rule 8, 9, 9A- Consequences of non-appearance of the plaintiff to the court of law.
Rule 6, 13, and 13A– Provisions with respect to non-appearance of the defendant to the court of law.

WHAT IS AN EX-PARTE DECREE?

Ex parte refers to judicial procedures that are conducted for the benefit of one side to a dispute without the opposing party present. Basic court rules stipulate that both parties must be present for any deliberation or proceeding, and that neither may approach the judge without first informing the other party. This is an exemption to those rules. Ex parte proceedings typically include urgent demands and frequently lead to interim orders pending a hearing on the issue. Take a look at the following ex parte definition to learn more about this idea.

Ex parte actions are permitted by state and federal statutes, which strike a balance between the right of people to fair notice and the need for the legal system to intervene in cases of impending and irreparable harm. This shows the adaptability of due process in the legal system rather than being a breach of constitutional rights. An ex parte hearing that results in a court order is swiftly followed by a full hearing with participation from all parties to the dispute in order to preserve the integrity of the system.

REMEDIES AGAINST EX-PARTE DECREE

The ex-parte order may be revoked when a defendant gives the court good reason for their absence. The decree will be overturned whenever the court acknowledges the defendant’s justification. The civil code contains remedies that a defendant may utilize to overturn a ruling made by the code and reopen the door to his case.

The following remedies are available to a defendant who has been served with an ex-parte decree:

Application to set aside the ex-parte decree under order 9 rule 13
Appeal against the decree under section 96(2) of CPC
File a revision under section 115 of CPC
Apply for review under order 47 Rule 1
On the ground of fraud by plaintiff

Order IX Rule 13, CPC-

The aggrieved defendant has the chance to present a compelling reason for his absence to the court that issued the ex parte ruling against him in order to have it overturned in the interest of justice under Order IX Rule 13 CPC.

According to the mentioned clause, if a defendant is the subject of an ex parte decree in any proceeding, the defendant may request a reversal from the court that issued the ex parte decree. If the defendant convinces the court that the summons was not properly served or that he was prevented from appearing when the suit was called for by any sufficient reason, the court will issue an order toscind the judgment against him on the conditions that it deems appropriate, including terms regarding costs, payment to the court, and other factors. The court shall also establish a date for the matter to be heard after making an order rescinding the ex parte ruling.

The first proviso of Order IX Rule 13 of the CPC states that the litigation may be of such a kind that it may be dismissed as to all or any of the other defendants but may not be dismissed as against such defendant.

The second proviso of Order IX Rule 13 of the CPC deals with the situation where the defendant was given notice of the hearing date and had ample time to appear and refute the plaintiff’s claim, but he failed to do so. In this case, he filed a request to set aside an ex parte order against him on the grounds that the summons had not been properly served. Subject to the requirement that the defendant was given notice of the hearing date and had adequate time to present and refute the plaintiff’s claim, the court in such situations shall not reverse an ex parte decree based only on an irregularity in summons service.

Furthermore, the provision states that no appeal shall be allowed under this rule to set aside the ex parte decree if an appeal against the ex parte decree filed pursuant to this rule has been dismissed on any basis other than the appellant’s withdrawal of the appeal.

APPEAL AGAINST EX-PARTE DECREE

On the merits of the suit, the defendant may argue in the first appeal pursuant to Section 96(2) CPC, that the evidence presented by the plaintiff was inadequate to support a decree in his favor or that the claim was otherwise unmaintainable. As an alternative, a request to vacate the ex parte decree (an order against a defendant made in their absence) may be made. These two treatments work in conjunction with one another. Additionally, in an appeal against an ex parte decree, the appellate court is willing to consider whether the ex parte decree issued by the trial court was appropriate or not.

REVISON UNDER SECTION 115 OF CPC

The revisional jurisdiction of the High Court is covered in Section 115 of CPC. It states that the High Court may request the record of any case decided by a court below it that has no right of appeal if the subordinate court appears to have exercised jurisdiction that was not granted to it by law, failed to exercise a jurisdiction that was granted to it, or acted illegally or with material irregularity while exercising that jurisdiction. The exclusive power of revision of the ex-parte decree or any other decree is on the hands of High court.

REVIEW UNDER ORDER 47 RULE 1

Any individual who feels discriminated against by a decree or order from which an appeal is permitted but no appeal has been filed, a decree or order from which no appeal is permitted, a judgment on a referral from a Court of Small Causes, or any combination of the three, and who, due to the discovery of new and significant information or evidence that, after exercising due diligence, was not within his knowledge or could not be produced by him at the time the decree was passed or the order made, or for any other sufficient reason, wishes to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court that passed the decree.

On the ground of fraud by plaintiff

According to Section 151 of the Code of Civil Procedure, civil courts have the authority to annul an ex-parte decree on the basis of fraud or abuse of the legal system. The clause enables the Court to issue any orders that may be required to uphold the rule of law or prevent misuse of the court’s procedures.

JUDICIAL PRONOUNCEMENTS

N. Mohan VS. R. Madhu[1]

In this case, the appellant failed to appear in court after the respondent filed a money recovery lawsuit in Tiruchirappalli, and the judge made an ex parte decision. The appellant submitted a request under Section 5 of the Limitation Act to accept the 276-day delay in submitting the Order 9 Rule 13 of the CPC application. Due to a change in his address, the appellant claimed that the summons had not been properly served. The summons was not delivered to him. The District Judge, High Court, and Supreme Court all simultaneously dismissed the appellant’s petition. His initial appeal under Section 96(2) of the CPC was denied by the Madras High Court, but the Supreme Court overturned that decision and upheld the appeal. Even though it could not find any errors or malicious intent on his part, the Court decided that the appellant had to be given an opportunity to be heard.

Mrs. Ambika Murali VS. Tmt. Valliammal & Anr. & etc.[2]

In this case, the landlord, who is the appellant, starts legal action against the tenants, who are the respondents, before the rent controller. The ex parte order to deposit rent arrears is issued by the rent controller. The Rent Controller granted the eviction petition by issuing an ex-parte decision since the tenants disobeyed the order. When the court’s administrator arrived to take control of their stores, the tenant filed an application to set aside the ex parte order. The tenant asked for forgiveness for the 175-day delay in reversing the ex parte decree. In this instance, the Madras High Court ruled that the 175-day delay was legitimate and adequately justified in front of the court, allowing the plea.

CONCLUSION

It is important that all parties must show up in court. The parties might appear in court by themselves or through a legal representative. The court has the authority to dismiss the case if no party was present. The defendant will receive a summons from the court if they disregard the court’s notices and fail to appear in court. The judge will issue an ex parte ruling. Defendants have a few legal options to challenge the ex parte judgment. The court will then annul the ex parte ruling if the defendant can show good cause for not appearing in court. The fundamental tenet of natural justice is a fair trial. Additionally, the court will ensure that none of the parties will suffer unjustly.

Therefore, He may apply to the court where the decree was issued for an order to set it aside. If he can show that the summons was not properly served or that he was prevented for a good reason from appearing when the case was called for hearing, the court will order the decree against him to be set aside, subject to cost payment to the court or other conditions the court deems appropriate, and will set a date for the suit to continue.

REFERENCES

[1] CIVIL APPEAL NO. 8898 OF 2019

[2] Civil Appeal No. 9355-9356 of 2010