REMEDIES IN CASES OF EX PARTE DECREE (WITH SPECIAL REFERENCE TO AN EX PARTE DECREE PASSED IN A SUIT FILED UNDER ORDER 36 CPC)

Introduction:- If defendant was set exparte in a suit, defendant cam make an application under Ofer 9 Rule 13 of CPC to set aside the exparte decree. If defendant was set exparte in Summary suits, what are remedies available to him to set aside such decree? This is the salient feature of this article. When the suit is called on for hearing, where the plaintiff appears but the defendant is called absent after receiving summons and there was no representation for the defendant, then, the Court may hear the suit exparte and pass a decree. It is thus clear that when a decree is passed by the court in the absence of the defendant, it is called ”ex-parte decree”. Order IX Rule 13 CPC deals with ” setting aside decree ex parte agaisnt the defendant”. I will later on discuss what are remedies in case of decree. With support of rulings of superior courts, the difference between ” ‘special circumstance’ found under Order 37 Rule 4 CPC” and the ‘sufficient cause’ found under Order 9 Rule 13 CPC is referred in this Court for clear understanding exparte decrees in ordinary suits and smmary suits.

The criteria for setting aside an ex parte decree passed in a suit filed under Or.36 CPC:-
1. Order 37 Rule 4 of CPC specifically provides the procedure to set aside ex parie decree to that extent Order 9, Rule 13 CPC stands excluded. Therefore, the principle of ‘sufficient cause’ found under Order 9 Rule 13 CPC cannot be imported into Order 37, Rule 4 of CPC and what is to be looked into is whether the defendant has made out a ‘special circumstance’ in terms of Order 37 Rule 4 CPC. See. Karumilli Bharathi vs Prichikala Venkatachalam – 1999 (3) ALT 407.
2. It is well-settled law that  ‘special circumstance’ found under Order 37 Rule 4 CPC is not synonymous with the ‘sufficient cause’ found under Order 9 Rule 13 CPC or under Section 5 of the Limitation Act.
3. The object of Order 37 is to provide a speedy remedy in favour of the plaintiff in suits based upon bills of exchange, hundies and promissory notes or in a case the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant arising on a contract or on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty or on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only. See. Karumilli Bharathi vs Prichikala Venkatachalam — 1999 (3) ALT 407.
4. In the decision reported in Mohan Lal Vs. Om Prakash, the Hon’ble High Court of Rajasthan, distinguished ‘sufficient cause’ from ‘special reason’. It held thai the case set up by the defendant for setting aside the ex parte decree, that the plaintiff assured that there would be settlement, therefore, he did not appear on the day fixed, could constitute ‘sufficient cause’ in terms of Order 9, Rule 13 CPC, but not ‘special reason’, as envisaged under Order 37, Rule 4 CPC.

5. In another judgment reported in Rahini Roy vs Jethmull Bhojraj And Anr – AIR 1969 Cal 218 , the High Court of Calcutta held that defendants in the case did not make out ‘special circumstances’. The facts of that case reveal that the defendants did not furnish security to the extent of Rs.30,000/- to the satisfaction of Registrar within one month, nor even after giving two time cxtentions and as such ultimately an ex parte decree was passed on 8-9-1997, when the mailer appeared in pre-emptory list. The Court held that the defendants therein did not explain their absence and their inaction when they had equal opportunity, ultimately held that the defendants did not make out ‘special circumstances’ for setting aside the ex parte decree.

6. Or. 20 Rule.11 CPC applies to decree passed for recovery of money, and also applies to summary suits. Under Order 20 R.11 CPC , court can order postponment of payment of amount of decree or can pass order to pay the decretal amount to D.Hr on installment basis. This is one of the remedies to the defendant to available after passing exparte decree in view of Summary suits under Order 36 CPC.
7. In M. Ramnarain Private Ltd. And Anr vs State Trading Corporation – 1983 AIR 786, it was held that appeal lies against the order passed under Order 20 R.11 CPC.

The criteriia for setting aside an ex parte decree:-
1. To set aside an exparte decree, the Court must satisfy the summons was not duly served upon defendant. However, mere irregularity in the service of summons upon defendant is a ground to set aside the decree. See. Second proviso to Or.9 R.13 CPC.
2. Another ground is that if the Court satisfies that defendant was prevented by sufficient cause for his appearance on the date of hearing. Then, the Court may set aside the exparte decree passed agaisnt the defendant.
3. As per Explanation to Or.IX Rule 13 CPC, exparte decree cannot be set aside where the appeal has been disposed of.
Remedies for Or.9 R.13 CPC:-
1. defendant can apply the Court under Or.9 R.13 CPC to set aside the ex-parte decree.
2. In case of the exparte decree was obtained by plauing fraud on the Court, the defendant can institute a suit on the ground of fraud.
3. Under Order 47 R.1 CPC, defendant can apply for ”Review’.
4. Defendant can prefer an appeal under Sec. 92 (2) CPC.
5. If no appeal lies, defendant can file revision.

In Bank of India’s case (1 supra), the Hon’ble Supreme Court has undertaken a detailed and comprehensive analysis of Rule 13 of Order 9 C.P.C. It was held that the relief cannot be confined only to cases where the decree is ex parte in nature and that the rule covers the cases in which the decree is on merits vis-a-vis same defendants and ex parte against others. Support was taken from the language, employed in the first proviso to Order IX of Rule 13 C.P.C. See also. M. Eswaramma v. N. Keshava Reddy and others – 2011 (5) ALT 289 . As has been observed in Namburi Chenna Reddy and others v. Devireddy Kotareddy and others – 2006 (2) ALT 369 , where the defendant is set ex parte, the trial court is not relieved of its duty to examine the merits of the matter and to render a reasoned judgment before passing a decree.

It was held in G.. Visweshwarudu Vs. State Bank of India and another – 1985 (1) ALT(NRC) 113, that ”In this case, the appellant has produced a medical certificate issued by a Doctor and admittedly that certificate was accepted and the delay was condoned holding that the appellant was prevented from filing an application since he was undergoing treatment with the Doctor. Once that fact is accepted by the court, different standards cannot be applied in considering the application to set aside the exparte decree. The self-same reasons are the reasons for his failure to appear in court on the day when the suit stood posted for trial. Therefore, the lower court has committed an error of law in holding that the Doctor has not been examined and, therefore, the burden which admittedly lay on the appellant was not discharged.

Or.9 Rule 13 CPC:- 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 for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may he set aside as against all or any of the other defendants also:
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.
Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

It was held in  Yelka Ram Reddy and others v. Kancharla Indira and others – 2004 (5) ALT 48 that while considering the application under Order IX Rule 13 C.P.C., the trial Court was required to examine as to whether there was any deliberate omission or lapse on the part of the respondents in attending the Court on the day on which the applicant was set ex parte and ex parte decree was passed. Instead, it proceeded to discuss the matter as though it was considering an application under Section 5 of the Limitation Act or an application to set aside the order forfeiting right to file written statement.

Conclusion:- Order 37 Rule 4 of CPC specifically provides the procedure to set aside ex parie decree to that extent Order 9, Rule 13 CPC stands excluded. The words ‘special circumstance’ found under Order 37 Rule 4 CPC are not synonymous with the ‘sufficient cause’ found under Order 9 Rule 13 CPC or under Section 5 of the Limitation Act. Or.20 Rule 11 of CPC can also be considered as one of the remedies to the defendant to available after passing exparte decree in view of Summary suits under Order 36 CPC. On the other hand, in other suits, in case of an exparte decree was passed in the absence of defendant, he can choose remedies under provisions Or.9 R.13 CPC, Order 47 R.1 CPC, Sec. 92 (2) CPC, if no appeal lies, defendant can file revision, and that the defendant can institute a suit on the ground of fraud.
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