How to set aside ex parte decree passed in civil suit

by | Sep 27, 2017

The civil court has passed an ex-parte decree. I came to know about it from other sources. What is the remedy available against this decree? Can this decree be set aside?

Question From: Civil Law

You should immediately move an interlocutory application for restoration or setting aside the ex-parte decree. Court had passed the decree because you were absent in court when the case called for hearing.

If you have sufficient reason for non-appearance or absence before the court, then you can move an IA under Order 9 Rule 13 of the Code of Civil Procedure(CPC) for setting aside the ex-parte decree.

The ex-parte decree is passed by the court when the plaintiff appears, but the defendant remains absent. Both parties are bound to appear before the court either personally or through their advocate.

You have following remedies against the ex-parte decree.

You may file an application under Order 9 Rule 13 of the CPC for setting aside the ex-parte decree. or

File a suit, contending that plaintiff  has fraudulently obtained the decree

Prefer an appeal against the ex-parte decree.

In Bhanu Kumar Jain v. Archana Kumar [(2005) 1 SCC 787]; the Supreme Court observed that when an ex-parte decree passed, the defendant has two clear options. First, to file an appeal or to submit an application for setting aside the order regarding Order 9 Rule 13 of the Code. He can initiate both proceedings simultaneously.

Order 9 Rule 13 of the CPC, empowers the Court to set aside the ex-parte decree when the applicant shows “sufficient cause” for his absence.

You can avail above said remedies if you have sufficient cause for non-appearance otherwise court dismiss your petition. In State of Rajasthan v. Shankar Lal, (2009) 16 SCC 116 the Supreme Court is held that the reasons given for restoration of the petition should be satisfactory in considering the facts of the case. If there is no sufficient cause was shown for the restoration of the petition, then it should be dismissed.

In Raj Kishore Pandey v. the State of U.P., [(2009) 2 SCC 692] the Supreme Court is held that whether the applicant has made out sufficient cause or not in the application for restoration, the court is required to look at all facts pleaded in the application.

Hence, the court considers all the facts stated in the application. You should produce cogent evidence towards non-appearance.

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