Remedies against ex-parte order

The right to be heard in a suit is one of the important principles of natural justice. When a suit is filed for hearing in which Plaintiff appears and the defendant does not appear in spite of summons being duly received court may proceed ex-parte.

Remedies against ex-parte order:

Following remedies are available to the party against whom the ex-parte order is passed:

1. Application to set aside ex-parte decree (Order 9 Rule 13)
2. Appeal against such decree [section 96 92)]
3. Revision application u/s 115 where no appeal lies
4. Application for review under Order 47 rule 1
5. Filing a suit on ground of fraud

Application to set aside ex-parte decree:

It can be entertained on the two grounds:

1. Where summon was not served
2. Defendant was prevented from appearing without sufficient cause

*Only defendant can avail this remedy unless he proves that he is genuinely affected by the decree

Appeal u/s 96:

It is the decree u/s 2(2) of CPC, appeal can be filed only by the aggrieved party u/s 96(2) of the Code.

Application u/s 114:

Order 47 Rule 1 and Section 114 of CPC entitles the court to review its order and substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided u/s 114

Filing suit on basis of fraud:

Case just to set aside the ex-parte decree is not admissible but if the ex-parte decree has been obtained by fraud by the plaintiff, the defendant can file a suit to such decree. Then the suit is maintainable despite unsuccessful application made under Rule 13 Order 9 or rejection of application for appeal.

Orders under Appeal:

1. Setting aside the decree which is not appealable nor can be entertained u/s 105
2. Order setting aside decree which itself is non appealable
3. Rejecting an application under Order 9 rule 13 is dismissed on merits
4. Proceedings are pending

Revision:

Revision order is maintainable if conditions of section 115 are satisfied and where the order is contrary to the provisions of Rule 13  or where court has disposed the application on merits or court has refused to set aside the decree of the ex-parte

Order 9 Rule 13, says that setting aside ex-parte decree against defendant, he may apply to the court by which the decree was passed for an order to set it aside and if the court is satisfied  that summons were not duly served, or that any sufficient cause prevented him from appearance for hearing ,the court shall make an order setting aside the decree against him.