Decree

• According to Section 2(2) of the Civil Procedure Code, 1973 (CPC), Decree means the formal expression of an adjudication which, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.
• Decree may be either:
  • Preliminary Decree: When further proceedings have to be taken before the suit can be completely disposed of.
  • Final Decree: When the adjudication completely disposes of the suit.
  • Deemed Decrees: By legal fiction, certain adjudications are deemed to be decrees under this code such as-
    • Decree of rejection of a plaint
    • Decree of determination of any question within Section 144 (Application for Restitution)
• Following adjudications are not deemed to be decrees under this code.
  • Any adjudication from which an appeal lies as an appeal from an order
  • Any order of dismissal for default

Ex-Parte Decree

• It is an exception to the general rule that an adjudication shall be pronounced in the presence of both the parties.
• It is a decree in absentia.
• It is pronounced if on the date of hearing the plaintiff is present, and the defendant is absent.

When is an Ex-Parte Decree Passed

• CPC provides for passing of an Ex Parte Decree wherever the presence of the defendant is required under the code and the defendant fails to appear.
• Following are the instances where the court can pass an Ex Parte Decree:

1. Order 8, Rule 10

• Rule 1 of Order 8 of CPC states that the defendant shall submit its written statement within 30 days from the date of service of summons.
• This time period of 30 days can be extended by the court to not more than 90 days from the date of service of summons.
• If the defendant fails to submit the written statement in such period, then the Court, under Rule 10 of Order 8, has the discretion to pass an Ex-Parte Decree.

2. Order 9, Rule 6

• This rule provides that the Court may proceed to try the case Ex-Parte, and pass an Ex Parte Decree in the same if:
  • On the day fixed in the summons for the defendant to appear, and answer, the plaintiff appears, and the defendant does not appear.
  • It is proved that the summons was duly served in sufficient time to enable the defendant to appear and answer.

Remedies Against An Ex Parte Decree

• Once an Ex Parte Decree has been passed against a judgement debtor, he/she can undertake any of the several remedies available to him under the code.
• CPC provides the following remedies against an Ex-Parte Decree:

1. Setting Aside

• Order 9, Rule 13 of the CPC, provides for the setting aside of the Ex-Parte decree passed against the defendant.
• Defendant against whom an Ex-Parte decree has been passed 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
  • He was prevented by any sufficient cause from appearing when the suit was called on for hearing.
  • If either of the above two conditions are satisfied, then the Court shall make an order setting aside the decree as against such defendant.

2. Conditional Setting Aside of Decree

• Court may, in its discretion, while setting aside a decree impose such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
• Rule 14 of the Order 9 states that no decree is to be set aside without furnishing notice to the opposite party.

3. Appeal

• According to Section 96(2) of the Code, an appeal may lie from an original decree passed ex parte.

4. Review

• A review under Section 114 of the code can be made against a decree passed Ex-Parte.
• Section 114 states that any person considering himself aggrieved—
  (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred
  (b) by a decree or order from which no appeal is allowed by this Code, or
  (c) by a decision on a reference from a Court of Small Causes,
  may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

Case Law

In the case of Bhanu Kumar Jain v. Archana Kumar & Anr (2004), the Apex Court set aside an Ex-Parte decree on the ground that the defendant had sufficient and reasonable grounds for not being able to attend the hearing of the suit on the day fixed in the summons.