1

DAMODARAM SANJIVAYYA
NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

DECREE AND EXPARTE DECREE

SUBJECT

CODE OF CIVIL PROCEDURE

NAME OF THE FACULTY

Mrs. N. BHAGYA LAKSHMI

Name of the Candidate

PALURU NIKHIL VYAS

Roll No.

2018LLB061

Semester
V
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ACKNOWLEDGEMENT

It is deemed appropriate to thank everyone who facilitated in the completion of this case
study. Firstly, we would like to thank Prof. Dr. S. Surya Prakash, Vice Chancellor of
Damodaram Sanjivayya National Law University for providing us this opportunity to
research in this field of law and providing the pre-requisite infrastructure necessary for
such an endeavor.

I would also like to provide our deepest gratitude to our Professor, Ms. N.Bhagya Lakshmi,
Our professor in Damodaram Sanjivayya National Law University for her continuous
support and guidance which was essential to the completion of this project even during the
lockdown.

And lastly I would like thank my friends and parents who assisted me in completing this
paper.
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Contents
INTRODUCTION.....................................................................................................................................4
Ex parte Decree (Order 9).....................................................................................................................4
DECREE...............................................................................................................................................5
Illustrations: Which are decrees:............................................................................................................6
Classes of Decree:.................................................................................................................................6
EX- PARTE DECREE..........................................................................................................................9
Remedies...............................................................................................................................................9
Summons not duly served....................................................................................................................10
Sufficient Cause for Non-Appearance.................................................................................................11
EFFECTS OF SETTING ASIDE A EX- PARTE DECREE...............................................................12
PASSING A EX-PARTE DECREE....................................................................................................13
CONCLUSION...................................................................................................................................14
BIBLIOGRAPHY...............................................................................................................................15
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INTRODUCTION

Ex parte hails from Latin language which means 'By or for one party' or 'by one side”.
According to principle of natural justice a case must be decided in presence of both the
party and both the parties must be given proper opportunity to present them. However in
some circumstances a court can award an ex parte decree. An ex parte decree is a decree
passed in the absence of the defendant (in absenti). Where the plaintiff appears and the
defendant does not appear when the suit is called out for hearing and if the defendant is
duly served, the court may hear the suit ex parte and pass a decree against him. Such a
decree is neither null and void nor inoperative but is merely voidable and unless and until it
is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a
bi parte decree and it has all the force of a valid decree.

In Australian, Canadian, U.K., Indian and U.S. legal doctrines, ex parte means a legal
proceeding brought by one person in the absence of and without representation or
notification of other parties. It is also used more loosely to refer to improper unilateral
contacts with a court, arbitrator or represented party without notice to the other party or
counsel for that party.

Although a judge is normally required to meet with all parties in a case and not with just
one, there are circumstances where this rule does not apply and the judge is allowed to
meet with just one side (ex parte) such as where a plaintiff requests an order (say to extend
time for service of a summons) or dismissal before the answer or appearance of the
defendant(s).

In addition, sometimes judges will issue temporary orders ex parte (that is, based on one
party's request without hearing from the other side) when time is limited or it would do no
apparent good to hear the other side of the dispute. For example, if a wife claims domestic
violence, a court may immediately issue an ex parte order telling her husband to stay away.
Once he's out of the house, the court holds a hearing, where he can tell his side and the
court can decide whether the ex parte order should be made permanent.

Ex parte Decree (Order 9)

 Rule 6- Procedure when only Plaintiff Appears

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 Rule 13 - Setting aside decree ex parte against defendant

 Rule 14 - No decree to be set aside without notice to opposite party

DECREE:

a) Meaning:

Sec 2(2) of the Code states that ‘Decree’ means the formal expression of an
adjudication which, so far as regards the court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or final. It shall be
deemed to include the rejection of a plaint and the determination of any
question within Sec 144 but shall not include −

• Any adjudication from which an appeal lies as an appeal from an order, or

• Any order of dismissal for default.

Explanation − A decree is preliminary when further proceedings have to be

taken before the suit can be completely disposed of. It is final when such
adjudication completely disposes of the suit. It may be partly preliminary
and partly final.

DECREE
Essential elements:

i.There must be an adjudication:

To constitute a decision of a court to be a decree, there must be adjudication, i.e. a judicial

determination of the matter in dispute. If there is no judicial determination of any matter in dispute, it
is not a decree as held in the matter of Madan Naik Vs Hansubala Devi (1983). Thus an order passed
by an officer who is not a court is not a decree.

ii.Suit:

The expression ‘Suit’ is not defined in the code. But in Hansraj Vs Dehradun Electric Tramway Co
Ltd (1933), Privy Council held that ‘Suit’ ordinarily means and apart from some context must be take
to mean, a civil proceeding instituted by a presentation of a plaint. Thus every suit is institutes by the
presentation of a plaint. It means when there is no civil suit, there is no decree. But proceedings under
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Indian Succession Act, Hindu Marriage Act, and Arbitration Act are statutory suits only and the
decisions are therefore decree only.

iii.Rights of parties in controversy:

The adjudication must have been determined the rights of the parties with regard to all or any of the
mattes in controversy in the suit. The word rights means substantive rights of parties and not merely
procedural rights as held in Dattatraya Vs Radhabai (1921). Thus rights of the parties inter se relating
to status, limitation, jurisdiction, frame of suit, accounts etc are “rights of the parties” are under this
section. The rights in matters of procedure are not included in it.

The term ‘parties’ to the suits i.e. the plaintiff and the defendant. Thus an order on an application by a
third party, who is stranger to the suit, is not a decree. In interpleader suit, the contesting defendants
will be deemed to be the parties to the suit.

iv.Conclusive determination:

Such determination must be of a conclusive nature. In other words, the determination must be final
and conclusive as regards the court which passes it as held in Narayan Vs Pratirodh (1991). Thus an
interlocutory order which does not decide the rights of the parties finally is not a decree, e.g. an order
refusing an adjournment or an order striking out defence of a tenant under the relevant rent act.

Illustrations: Which are decrees:

Following decisions are decrees:

i. Order of abatement of suit;

ii. Dismissal of appeal as time barred;

iii. Dismissal of suit or appeal for want of evidence or proof;

iv. Rejection of plaint for non−payment of court−fees.

Following decisions are not decrees:

i. Dismissal of appeal for default.

ii. Appointment of Commissioner to take accounts;

iii. Orders of remand;

iv. Orders granting interim relief;

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Classes of Decree:

Preliminary Decree:

A preliminary decree is passed in those cases in which the court has first to adjudicate
upon the rights of parties and has then to stay its hands for the time being, until it is in a
position to pass a final decree in the suit.

In the other words, a preliminary decree is only a stage in working out the rights of the
parties which are to be finally adjudicated by a final decree as held in Shankar Vs
Chandrakant (1995).

Few instances where a preliminary decree may be passed are suits for:

• Recovery of possession of immoveable property and for rent. O 12, R

12.
• Administration of the estate of a deceased person. O 20, R 13

• Pre−emption O 24, R 14.

• Dissolution of Partnership, O 20, R 15

• Accounts between principal and agent. O 20, R 16

There is a conflict of opinion as to whether there can be more than one preliminary
decree in same suit. The SC in Phoolchand Vs Gopal lal (1967), wherein it has been
observed that there is nothing in the CPC which prohibits passing of more than one
preliminary decree, if circumstances justify the same and it may be necessary to do so.

Final decree

A decree may be said to be final in 2 ways −

• When within the prescribed period no appeal is filed against the decree
or the matter has been decided by the decree of the highest court; and
• When the decree so far as regards the court passing it, completely
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disposes of the suit.

It is in the latter sense that the words “final decree” is used. A final decree is one which
completely disposes of a suit and finally settles all questions in controversy between the
parties and nothing further remains to be decided thereafter. Thus in a suit for recovery
of money, if the amount found due to the decree holder is declared and the manner in
which the amount is to be paid has also been laid down, the decree is a final decree.
Ordinarily there will only one final decree. Special circumstances may require passing of
more than one decree in the same suit. Where two or more causes of action are joined
together, there can be more than one final decree as held in Kanji Vs JivRaj (1976).

Partly preliminary and partly final decree –

A decree may be partly preliminary and partly final e.g. in a suit for possession of
immoveable property with mesne profits, where the court −

• Decrees possession of property ; and

• Directs an enquiry into the mesne profits.
The former part of the decree is final, while the latter part is only preliminary because
the final decree for mesne profits can be drawn only after the enquiry and the amount due
is ascertained. In such a case even though the decree is only one, it is partly preliminary
and partly final (Lucy Vs Mariaapa (1979)).

A final decree may be said to become final in 2 ways −

• When the time for appeal has expired without any appeal being field against the
preliminary decree or the matter has been decided by the highest court;
• When the time for appeal has expired without any appeal being field against the
preliminary decree the same stands as completely disposed.
Deemed decree –
The term deemed is generally used to create a statutory fiction for the purpose of
extending the meaning which it does expressly cover. The rejection of a plaint and the
determination of questions under Sec 144 are deemed decrees. Similarly adjudications
under O 21, Rule 58 as also under O 21, R 98 or 10 are deemed decrees.
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Rejection of plaint:
Even though an order rejecting a plaint does no preclude the plaintiff from presenting a
fresh plaint on the same cause of action. Sec 2(2) of CPC provides that rejection of a
plaint shall be deemed to be a decree. The rejection must be one authorized under the
code or else its not a deemed decree.

EX- PARTE DECREE

An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where
the plaintiff appears and the defendant doesn’t appear when the suit is called out for
hearing and if the defendant is duly served, the court may hear the suit ex parte and pass a
decree against him. Such a decree is neither null nor void nor inoperative but is merely
voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful,
operative and enforceable like a bi-parte decree and it has all the force of a valid decree.2

Remedies

The defendant, against whom an ex parte decree has been passed, has the following
remedies available to him:

 Apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or

 Prefer an appeal against such decree: Section 96(2) (or to file a revision under
Section 115 where no appeal lies);
 Apply for review: Order 47 Rule 1; or

 File a suit on the ground of fraud.1

The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently. “Where two proceedings or two remedies are provided by a statute, one of
them must not be taken as operating in derogation of the other.”

In Sunderlal v. Nandramda4, it was observed that though the Act does not give any power
of dismissal, it is axiomatic that no court or tribunal is supposed to continue a proceeding
before it when the party who has moved it has not appeared nor cared to remain present.
The dismissal, therefore, is an inherent power which every tribunal possesses. This was
1
C.K. Takwani, Civil Procedurewith Limitation Act, 1963 279 (7h ed. 2013).
 10

approved in Dr. P. Nalla Thampy v. Shankar2. In New India Assurance v. Srinivasan3, it

was held that every court or judicial body or authority, which has a duty to decide a lis
between two parties, inherently possesses the power to dismiss a case in default. Where a
case is called up for hearing and the party is not present, the court or the judicial or quasi
judicial body is under no obligation to keep the matter pending before it or to pursue the
matter on behalf of the complainant who had instituted the proceedings. That is not the
function of the court or, for that matter of a judicial or quasi judicial body. In the absence
of the complainant, therefore, the court will be will within its jurisdiction to dismiss the
complaint for non prosecution.

GROUNDS:

The two grounds on the basis of which an ex parte decree can be set aside under Order 9,
Rule 13 are:- (PLD 1979SC 18)

 That the summons was not duly served, or

 That the defendant was prevented by sufficient cause from appearing when the case
was called on for hearing.

If either of these conditions is satisfied, the court must set aside the decree and where these
conditions are not satisfied the decree cannot be set aside. This question has to be decided
on the basis of evidence or affidavits.4

Summons not duly served

Prior to proceedings ex parte, a court must record a declaration of due service under Order
5 (Issue and Service of Summons) rule 19 (Examination of serving officer), this is
mandatory. Where there is nothing to show due compliance with rules 13 (Service on agent
by whom defendant carries on business) and 20 (Substituted service) of Order 5, the decree

2
Dr. P. Nalla Thampy v. Shankar, (1984) (Supp) SCC 631 (India).
3
New India Assurance v. Srinivasan, (2000) 3 SCC 242 (India).
4
Daud Aziz Khokhar, Ex Parte Decree and Remedies Available in CPC, Scribd

(Mar 05, 2017, 05:10 PM), https://www.scribd.com/doc/89965049/Ex-Parte-Decree-and-Remedies-

Available- in-CPC#logout
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should be set aside. Where the summons has not been duly served, the ensuing proceedings
will be a nullity. Due service refers to service which effectively brings the claim to the
knowledge of the defendant and is effected in accordance with the provisions of the code
relating to service of summons and in time for the defendant to attend and at the proper
address. By virtue of the proviso, an ex parte decree will not be set aside on the ground of
irregularity in the service of summons, when the court for reasons to be recorded, is
satisfied, that notwithstanding such irregularity, the defendant had knowledge in sufficient
time to appear on that date and answer the claim.5

Sufficient Cause for Non-Appearance

The Supreme Court in its Judgment Parimal v. Veena Bharti6 has examined the provisions
of Order IX Rule 13 of the Code of Civil Procedure, 1908. Order IX Rule 13 of the CPC
speaks of conditions under which an Ex-Parte Decree can be set aside. While examining
the various judicial precedents on the provision, the Court held as under; Order IX, R.13
CPC. The aforesaid provisions 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 was 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 .

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.

It is evident from the above that an ex-parte decree against a defendant has to be set aside if
the party satisfies the Court that summons had not been duly served or he was prevented by

5
Ibid
6
Parimal v. Veena Bharti, (2011) 2 SCC 302 (India).
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sufficient cause from appearing when the suit was called on for hearing. However, the
court shall not set aside the said decree on mere irregularity in the service of summons or in
a case where the defendant had notice of the date and sufficient time to appear in the court.

The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not
permissible for the court to allow the application in utter disregard of the terms and
conditions incorporated in the second proviso herein.

"Sufficient Cause" is an expression which has been used in large number of Statutes. The
meaning of the word "sufficient" is "adequate" or "enough", in as much as may be
necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more
than that which provides a platitude which when the act done suffices to accomplish the
purpose intended in the facts and circumstances existing in a case and duly examined from
the view point of a reasonable standard of a cautious man. In this context, "sufficient
cause" means that party had not acted in a negligent manner or there was a want of bona
fide on its part in view of the facts and circumstances of a case or the party cannot be
alleged to have been "not acting diligently" or "remaining inactive". However, the facts and
circumstances of each case must afford sufficient ground to enable the Court concerned to
exercise discretion for the reason that whenever the court exercises discretion, it has to be
exercised judiciously.

In Arjun Singh v. Mohindra Kumar & Ors 7, this Court observed that every good cause is a
sufficient cause and must offer an explanation for non-appearance. The only difference
between a "good cause" and "sufficient cause" is that the requirement of a good cause is
complied with on a lesser degree of proof than that of a "sufficient cause.

EFFECTS OF SETTING ASIDE A EX- PARTE DECREE

After an ex parte order is set aside the suit is restored to file and parties are relegated to the
position they occupied before the non-appearance of the defendant, and the court will
proceed with the suit de novo and decide on merits. If an application for setting aside is
rejected an appeal lies against such order.
Appeal

An appeal lies against an order rejecting an application to set aside ex parte decree. As

7
Arjun Singh v. Mohindra Kumar & Ors, AIR 1964 SC 993 (India).
 13

stated above, an ex parte decree is a decree under section 96(2) of the Code. A
controversial and somewhat complicated question of law is: whether in such cases the
appellate court can only consider the decree passed by the lower court on merits as to
whether there were sufficient to pass the decree or whether the appellate court can also
consider whether there were sufficient reasons for the defendant for non appearance and
the court is not justified in passing an ex parte decree against the defendant.8
There is a conflict of judicial decisions on this point. One view is that the appellate court
can only consider the question whether the decree was wrong in law while the other view is
that the appellate court has the power to consider whether the lower court was justified in
proceeding with the matter ex parte, and if the lower court was not right in doing so, to set
aside the ex parte decree. It is submitted that the latter view is much more acceptable and
preferable, particularly when appeal is continuation of suit and re hearing of the matter.
Appeal does not lie from an order granting an ex parte decree set aside.
Revision

An order setting aside an ex parte is a “case decided” within the meaning of Sec.115 of the
Code and is therefore, revisable. A High Court may also exercise supervisory jurisdiction
under Art.227 of the Constitution in appropriate cases.
Review

Since all the remedies against an ex parte decree are concurrent, an aggrieved party can
also file an application for review if the condition laid down in Order 47 Rule 1 are
satisfied.
Suit

A suit to set aside an ex parte decree is not maintainable. But if an ex parte is alleged to
have obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside
such decree. It is settled law that fraud vitiates the most solemn transactions. In such suits,
the owner is on the party who alleges that the ex parte decree passed against him was
fraudulent.

8
Remedies Against an Ex-Parte Decree , Mighty Laws Simplified…

(Mar 07, 2017, 07:05 PM), http://www.mightylaws.in/497/remedies-exparte-decree

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PASSING A 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.9

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.

CONCLUSION
The Right to be heard in a suit is one of the tenets of principles of natural justice and our
Civil Procedure duly provides for such right to the party. Despite the sufficient opportunity
provided if the party does not avail this to explain himself, in court hears the suit ex parte.
In order for the justice system to be efficient and to not prejudice the rights of the plaintiff
this is justified.

However, owing to unavoidable reasons the party might not appear for the hearing. In such
cases the Code is sensitive those genuine cases. On careful reading of Order IX Rule 13 it
is obvious that the applicant for setting aside the ex parte decree should satisfy the Court
that there was sufficient cause for its non- appearance on the date of hearing. As noted
earlier an application under this rule cannot be entertained on moral or humanitarian
grounds however; the Courts cannot be deaf toward the realities of life.

9
Passing Of The Ex Parte Decree, Law Teacher

(Mar 08, 2017, 07:05 PM), https://www.lawteacher.net/free-law-essays/administrative-law/passing-of-

the- ex-parte-decree-administrative-law-essay.php
 15

BIBLIOGRAPHY
Books:

 C.K. Takwani, Civil Procedure with Limitation Act, (7h ed. Eastern Book
Company 2013).

Legislation:

 THE CODE OF CIVIL PROCEDURE, 1908

Online Sources:

 https://www.scribd.com/doc/89965049/Ex-Parte-Decree-and-Remedies-Available-
in- CPC#
 https://www.lawteacher.net/free-law-essays/administrative-law/passing-of-the-
ex- parte-decree-administrative-law-essay.php
 http://www.mightylaws.in/497/remedies-exparte-decree

 http://engllb.blogspot.in/2013/01/ex-parte-decree.html

 http://hanumant.com/CPC-Decree.html

 http://apvc.ap.nic.in/js/vol1/c29t1s2.html