DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

SUBJECT: CIVIL PROCEDURE CODE

PROJECT ON

EX- PARTE DECREE AND REMEDIES AVAILABLE IN CPC

SUBMITTED BY SUBMITTED TO

SANIYA SINGH Mr. VIPUL VINOD

B.A.LL.B. - IV Semester ASSISTANT PROFESSOR

SECTION: A Dr. RAM MANOHAR LOHIYA

ENROLLMENT NO. 220101087 NATIONAL LAW UNIVERSITY

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 ACKNOWLEDGEMENT

Nothing in this whole world can be accomplished alone and my piece of work is also not an
exception too, in successful completion of this piece work there has been help and support of
various peoples. I am obliged to my Assistant Professor Mr. VIPUL VINOD who has given me
golden chance for this research project. I would also like to thank the almighty and my parents
for their moral support and my friends who are always there to extend the helping hand
whenever and wherever required.

I further extend my thanks to library staff and all the administrative authorities of DR.
RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY who helped me in getting all
the materials necessary for the project.

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 TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................ 4

REMIDIES AGAINST EX PARTE DECREE ............................................................................. 5

GROUNDS ON WHICH THE EX PARTE REMEDIES AVAILABLE ...................................... 9

CONSEQUENCES OF NON-APPEARANCE OF PARTIES ................................................... 11

EX PARTE PROCEEDINGS ..................................................................................................... 13

RES JUDICATA UNDER CODE OF CIVIL PROCEDURE, 1908 .......................................... 14

ESSENTIAL ELEMENTS FOR RES JUDICATA .................................................................... 16

CONCLUSION .......................................................................................................................... 20

BIBLIOGRAPHY ...................................................................................................................... 21

Statutes Referred: ....................................................................................................................... 21

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 INTRODUCTION
Where a defendant absents himself from court on date of hearing mentioned in
the summons duly served on him, the court is empowered under Order 9, Rule
6(1) (a) to proceed ex- parte and to pass an ex parte decree against such defendant
thereon.

Here Order 9, rule 6(1) (a) talks about the procedure when only plaintiff appears.
Here the order 9 rule 6(1)(a), talk about that were the plaintiff only appears and
the defendant not appears when the suit is called on for hearing then it should be
seemed the procedure

(a) When summon duly served1 – here we can say that when the summon should
be duly served, the court may make an order that the suit be heard ex- parte

Or the Order 9 rule 13 , said that when an setting aside decree ex –parte against
defendant .in which the a decree is passed ex parte against the defendant, he may
apply to the court by which the decree was passed for an order to set it aside and
if he satisfies that 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 against him upon such term as to cost
payment to court or otherwise as it think fit and shall appoint a day for proceeding
with the suit.

Decree can only be given in relation to a suit. Although CPC does not define what
suit means, in Hansraj v. Dehradun Mussoorie Tramways Co. Ltd.2 the Privy
Council defined the term suit as "a civil proceeding instituted by the presentation
of a plaint".

1
Subs, by CPC (amendment) act 104 of 1976, S. 59 for clause (a), (w.e.f 1-2-1977). 2
Hansraj v. Dehradun Mussoorie Tramways Co. Ltd. A.I.R. 1940.

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 REMIDIES AGAINST EX PARTE DECREE
1. An application under Order 9, Rule 13, The main contention of the learned
counsel for the appellant is that, when the defendant in the suit failed to let in
evidence and failed to participate in the suit proceedings further, the trial Court
ought not to have passed a judgement on merits under order 17 Rule 3 and
instead should have passed only an ex- parte judgement under order 17 Rule 2
CPC. Therefore, according to the learned counsel for the appellant, the
judgements of both the courts below are to be set aside and remitted back for
fresh consideration after giving an opportunity to the defendant/appellant to let
in evidence on her behalf.

First Appellate Court and contested the appeal on merits and it was not the
contention of the defendant that the judgement is ex-parte one and therefore, the
First Appellate Court judgement is liable to be set aside and send it back to the
trial Court for re- consideration. A perusal of the memorandum of grounds of first
Appeal filed before the Lower Appellate Court will show that the appeal
challenged the decree of the trial Court on merits and their main contention before
the Lower Appellate Court was that the suit was decreed not on the strength of
the plaintiff's case but on the weakness of the defendant's case and therefore, the
judgement should be set aside. Thus, the question, as raised before this Court for
the first time under the guise of substantial question of law, did not arise at all in
the second appeal. 17.In 2005(4) LW 578, (cited supra), the defendant filed an
application under Order 9 Rule 13 to set aside the ex-parte decree, but the trial
Court dismissed the application on the ground that the suit was disposed on merits
and the application filed under Order 9 Rule 13 CPC was misconceived. When
this was challenged before this Court, this Court found that before the trial Court,
the plaintiff examined PW1 to PW5 in chief and they were not cross-examined
by the defendant. Hence, the plaintiff's side evidence was closed and the suit was

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adjourned for the evidence on the side of the defendant. The defendant did not let
in any evidence and the trial Court passed a judgement and decree which was held
by this Court in that case that it was only an ex-parte decree under Order 17
Rule 2 and not a judgement on merits under Order 17 Rule 3
CPC.2

2. A review application u/s 114. Section 114 empowers the court to review its
order if the condition precedents laid down therein are satisfied. The
substantive provision of law does not prescribe any limitation on the power of
the court except those which are expressly provided under the section 114 of
the code in terms whereof it is empowered to make such order as it thinks fit.3

In another case Kalpatru Agro Forest Enterprises v. UOI, 4 was the question
regarding the concession in respect of and overhead charged was concluded in
the earlier writ petition by the allot tees and the special leave petition in a special
leave petitioner by Supreme Court also dismissed.

The Code of Civil Procedure is not maintainable since the provisions of C.P.C.
has no application when the scheme of compromise is being conducted under the
Companies Act and that being a special law, the provisions of Civil Procedure
Code could not be invoked. Counsel further submits that the review petition in
case of judicial/quasi-judicial orders is not maintainable unless the statute/Rules
so permit and in absence of any provision in the Act granting an express or
implied power of review, a review could not be made and the order in review, if
passed, will be wholly without jurisdiction. In support of his submission

2
M. Nagarathinam v. S. Alfonsa Mary, 2009 Mad. H.C.
3
Board of Control for Cricket in India v. Netaji Cricket Club. AIR 2005 S.C. 502.
4
Kalpatru Agro Forest Enterprises v. Union of India A.I.R. 2002 S.C. 1402.

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3. An appeal under Section 96. In general, an appeal lies from any decree passed
by the court (Sec. 96). In cases, where the value of suit does not exceed Rs.10,
000 an appeal can be filed only on a question of law (Sec. 96). When a decree
has been passed against the Defendant as "Ex-Parte", i.e., without his
appearance, no appeal is allowed (Sec. 96). When an appeal is headed by two
or more judges, then the majority decision shall prevail. In case there is no
majority, then the decree of lower court shall be confirmed. In case, the number
of judges in the court, where appeal is filed is more, than the number of judges
hearing the appeal, then if there is a dispute on a point of law, such dispute can
be referred to one or more judges.

Procedure for Appeal from Original Decrees (Order 41) the appeal shall be filed
in the form prescribed, signed by the appellant, along with a true certified copy
of the order. The appeal shall contain the grounds of objection under distinct
heads, and such grounds shall be numbered consecutively. If the appeal is against
a decree for payment of money, the court may require the appellant to deposit the
disputed amount or furnish any other security. A ground / objection which has not
been mentioned in the appeal, cannot be taken up for arguments, without the
permission of court. Similarly, any point of act which was not taken up by the
Appellant, in lower court, cannot be taken up in appeal lies only against only
those points which have been decided by the court rightly or wrongly.

4. A proceeding to set aside the decree on the ground that it has been obtained
by fraud etc. u/s 12. In a case Hari ram v. Lichmaniya5, where the suit was
wrongly instituted against a person as heir of another person and decree, a fresh
suit against the real heir is not barred where u/s 12 its stated that were the

5
Hari ram v. Lichmaniya A.I.R. 2003 Raj 319.

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 plaintiff is precluded by rule from instituting a further suit in respect of
particular cause of action, he shall not to be entitled to institute a suit in respect
of such cause of action in any court in which this code applies.

5. An application for re-hearing of the matter on the ground of violation of

the principles of natural justice.

6. In appropriate cases the inherent powers of a court may also be attracted

or a writ may lie.

7. A revision may also lie.

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 GROUNDS ON WHICH THE EX PARTE REMEDIES AVAILABLE
The two grounds on the basis of which an ex- parte decree can be set aside under
Order 9, Rule 13

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.

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 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 affected 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.

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Sufficient cause

Where sufficient cause is shown, the decree shall have to be set aside. The term
‘sufficient cause’ is not susceptible of an exact definition and no hard and fast
rule can be laid down to cover all possible cases and each case is to be judged
upon its particular circumstances, and where non-appearance is not intentional, a
strict view should not be taken to put a party out of court. The term sufficient
cause means beyond the control of a party and cannot include cases of extreme
negligence.

Upon such terms as to costs; etc

The rule gives a wide discretion to the court in the matter of imposing conditions
upon ordering the setting aside of an ex parte decree. A court can make an order
of restoration subject to fulfillment of conditions, but it should clearly specify the
consequences of non-fulfillment of conditions. The court can also extend the time
for fulfillment of the conditions.

Effect of setting aside

Upon setting aside of an ex parte decree, the status quo ante is restored and the
trial commences de nova from the stage at which the proceedings were taken ex
parte. However, where the decree is set aside on the ground that the claim is
fraudulent, the suit cannot be restored and tried.

Dismissal of setting aside application

In appropriate cases restoration can be made u/s 151. An appeal may lie against
the dismissal of the application in default.

Limitation

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An application under Order 9 rule 13 must in accordance with the bounds of Art.
164 of the Limitation Act 1908 are made within 30 days of the decree.

Appeal

The following types of orders can be passed under rule 13: -

An order setting aside the decree which is not appealable nor can it be
attacked under S. 105.

An order setting aside the decree on certain terms which is by itself not
appealable.

An order rejecting an application under Order 9 rule 13 is dismissed on

merits; it cannot be attacked under S. 105 before the court hearing an
appeal against the decree.

Pending proceedings to set aside the decree, execution can be stayed.

Revision

An order setting aside an ex parte decree is not a decree. A revision against the
order may lie if the conditions of S. 115 are satisfied, as for instance, where the
order is contrary to the provisions of Order rule 13, or where the court has
disposed of the application upon a consideration of the merits of the decree, or
has refused to set aside the decree despite the fact that summons was not duly
served or has disposed of the matter on an erroneous view regarding limitation
etc. However, no revision will lie if an alternate remedy is available.

CONSEQUENCES OF NON-APPEARANCE OF PARTIES

The general provisions of CPC are based on the principle that both the parties
must be given an opportunity to be heard. The proceedings must not be held to

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the disadvantage of one party. Order 9 lays down rules regarding the appearance
and the consequences of non-appearance of a party in the hearing

Rule 1 - Parties to appear on day fixed in summons for defendant to appear and
answer — On the day fixed in the summons for the defendant to appear and
answer, the parties shall be in attendance at the Court-house in person or by their
respective pleaders, and the suit shall then be heard unless the hearing is
adjourned to a future day fixed by the Court.

Dismissal of Suit

Rule 2 - Dismissal of suit where summons not served in consequence of plaintiff’s

failure to pay cost— Where on the day so fixed it is found that the summons has
not been served upon the defendant in consequence of the failure of the plaintiff
to pay the court-fee or postal charges (if any) chargeable for such service, or to
present copies of the plaint or concise statements, as required by rule 9 of order
VII, the Court may make an order that the suit be dismissed:

Provided that no such order shall be made, if, notwithstanding such failure the
defendant attends in person (or by agent when he is allowed to appear by agent)
on the day fixed for him to appear and answer.

Rule 3 - Where neither party appears, suit to be dismissed— where neither party
appears when the suit is called on for hearing, the Court may make an order that
the suit be dismissed.

Rule 4 - Plaintiff may bring fresh suit or Court may restore suit to file— Where
a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of
limitation) bring a fresh suit, or he may apply for an order to set the dismissal
aside, and if he satisfies the Court that there was sufficient cause for such failure

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as is referred to in rule 2, or for his non-appearance, as the case may be, the Court
shall make an order setting aside the dismissal and shall appoint a day for
proceeding with the suit.

Rule 5 - Dismissal of suit where plaintiff after summons returned unserved, fails
for one month to apply for fresh summons:

(1) Where after a summons has been issued to the defendant, or to one of several
defendants, and returned unserved the plaintiff fails, for a period of one month
from the date of the return made to the Court by the officer ordinarily certifying
to the Court returns made by the serving officers, to apply for the issue of a fresh
summons the Court shall make an order that the suit be dismissed as against such
defendant, unless the plaintiff has within the said period satisfied the Court that-

(a) He has failed after using his best endeavors to discover the residence of the
defendant, who has not been served, or

(b) Such defendant is avoiding service of process, or

(c) There is any other sufficient cause for extending the time, in which case the
Court may extend the time for making such application for such period as it
thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh
suit.

EX PARTE PROCEEDINGS
Rule 6 - Procedure when only plaintiff appears-

(1) Where the plaintiff appears and the defendant does not appear when the suit
is called on for hearing, then-

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(a) When summons duly served—if it is proved that the summons was duly
served, the Court

(b) When summons not duly served—if it is not proved that the summons was
duly serve, the Court shall direct a second summons to be issued and served on
the defendant;

(c) When summons served but not in due time—if it is proved that the summons
was served on the defendant, but not in sufficient time to enable him to appear
and answer on the day fixed in the summons, the Court shall postpone the hearing
of the suit to future day to be fixed by the Court, and shall direct notice of such
day to be given to the defendant.

(2) Where it is owing to the plaintiffs' default that the summons was not duly
served or was not served in sufficient time, the Court shall order the plaintiff to
pay the costs occasioned by the postponement.

RES JUDICATA UNDER CODE OF CIVIL PROCEDURE, 1908

Section 11 of CPC embodies the doctrine of res judicata or the rule of
conclusiveness of a judgment, as to the points decided either of fact, or of law, or
of fact and law, in every subsequent suit between the same parties. It enacts that
once a matter is finally decided by a competent court; no party can be permitted
to reopen it in a subsequent litigation. In the absence of such a rule there will be
no end to litigation and the parties would be put to constant trouble, harassment
and expenses.

Section 11 says that:

No Court shall try any suit or issue in which the matter directly and substantially
in issue has been directly and substantially in issue in a former suit between the
same parties, or between parties under whom they or any of them claim, litigating

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under the same title, in a Court competent to try such subsequent suit or the suit
in which such issue has been subsequently raised, and has been heard and finally
decided by such Court.

Explanation I: The expression "former suit" shall denote a suit which has been
decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II. For the purposes of this section, the competence of a Court shall
be determined irrespective of any provisions as to a right of appeal from the
decision of such Court.

Explanation III. The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or impliedly, by the
other.

Explanation IV. Any matter which might and ought to have been made ground
of defense or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.

Explanation V. Any relief claimed in the plaint, which is not expressly granted
by the decree, shall, for the purposes of this section, be deemed to have been
refused.

Explanation VI. Where persons litigate bona fide in respect of public right or of
a private right claimed in common for them and others, all persons interested in
such right shall, for the purposes of this section, be deemed to claim under the
persons so litigating.

Explanation VII. The provisions of this section shall apply to a proceeding for
the execution of a decree and reference in this section to any suit, issue or former
suit shall be construed as references, respectively, to proceedings for the

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execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree.

Explanation VIII. An issue heard and finally decided by a Court of limited

jurisdiction, competent to decide such issue, shall operate as res judicata in as
subsequent suit, notwithstanding that such Court of limited jurisdiction was not
competent to try such subsequent suit or the suit in which such issue has been
subsequently raised.

The doctrine has been explained by Justice Das Gupta as follows - The principle
of Res Judicata is based on the need of giving finality to the judicial decisions.
What it says is that once a case is res judicata, it shall not be adjudged again.
Primarily it applies as between past litigation and future litigation. When a matter-
whether on a question of fact or a question of law has been decided between two
parties in one suit or proceeding and the decision is final, either because no appeal
was taken to a higher court or because the appeal was dismissed, or no appeal
lies, neither party will be allowed in a future suit or proceeding between the same
parties to canvas the matter again.

ESSENTIAL ELEMENTS FOR RES JUDICATA

1. The matter in issue in a subsequent suit must directly and substantially be same
as in the previous suit.

2. The former suit must have been between the same parties or between parties
under whom they or any of them claim.

3. Such parties must has been litigating under the same title in the former suit.

4. The court which decided the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised.

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5. The matter directly and substantially in issue in the subsequent suit must have
been heard and finally decided by the court in the former suit.

Exceptions to application

Res Judicata does not restrict the appeals process, which is considered a linear
extension of the same lawsuit as the suit travels up (and back down) the appellate
court ladder. Appeals are considered the appropriate manner by which to
challenge a judgment rather than trying to start a new trial. Once the appeals
process is exhausted or waived, res judicata will apply even to a judgment that is
contrary to law.

The provisions of section 11 of the Code are mandatory and the ordinary litigant
who claims under one of the parties to the former suit can only avoid its provisions
by taking advantage of section 44 of the Indian Evidence Act which defines with
precision the grounds of such evidence as fraud or collusion. It is not for the court
to treat negligence or gross negligence as fraud or collusion unless fraud or
collusion is the proper inference from facts.

In Beliram Brothers & Ors. v. Chaudari Mohammed Afzal & Ors.6 it was held
that where it is established that the minors suit was not brought by the guardian
of the minors bona fide but was brought in collusion with the defendants and the
suit was a fictitious suit, a decree obtained therein is one obtained by fraud and
collusion within the meaning of section 44 of the Indian Evidence Act, and does
not operate res judicata. The principle of res judicata in section 11 CPC is
modified by section 44 of the Indian Evidence Act, and the principles will not
apply if any of the three grounds mentioned in Section 44 exists.

6
Beliram Brothers & Ors. v. Chaudari Mohammed Afzal & Ors A.I.R. 1948 P.C. 168.

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Failure to apply

When a subsequent court fails to apply res judicata and renders a contradictory
verdict on the same claim or issue, if a third court is faced with the same case, it
will likely apply a "last in time" rule, giving effect only to the later judgment,
even though the result came out differently the second time.

Constructive Res Judicata

The rule of direct res judicata is limited to a matter actually in issue alleged by
one party and denied by other either expressly or impliedly. But constructive res
judicata means that if a plea could have been taken by a party in a proceeding
between him and his opponent, and if he fails to take that plea, he cannot be
allowed to relitigate the same matter again upon that plea. In affect the partly
impliedly gives up the right to that plea by not pleading it in the previous suit.

This principle is embodied in Explanation IV of Section 11.

Explanation IV. Any matter which might and ought to have been made ground of
defense or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.

Ex parte decree as Res Judicata

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An ex parte decree, unless it is set aside, is a valid and enforceable decree.
However, the real test for res judicata is whether the case was decided on merits.
The real test for deciding whether the judgment has been given on merits or not
is to see whether it was merely formally passed as a matter of course, or by way
of penalty for any conduct of the defendant, or is based upon a consideration of
the truth or falsity of the plaintiff's claim, notwithstanding the fact that the
evidence was led by him in the absence of the defendant. Thus, a decree may not
act as res judicata merely because it was passed ex parte. It therefore acts a res
judicata.

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 CONCLUSION
Where a defendant absents himself from court on date of hearing mentioned in
the summons duly served on him, the court is empowered under Order 9, Rule
6(1) (a) to proceed ex parte and to pass an ex parte decree against such defendant
thereon.

Or the Order 9 rule 13 , said that when an setting aside decree ex –parte against
defendant .in which the a decree is passed ex parte against the defendant, he may
apply to the court by which the decree was passed for an order to set it aside and
if he satisfies that 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 against him upon such term as to cost
payment to court or otherwise as it think fit and shall appoint a day for proceeding
with the suit.

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 BIBLIOGRAPHY
Statutes
Referred:

1. Code of Civil Procedure, 1908.

Books Referred:

1. C.K. Takwani, Civil with Limitation Act, (7th Ed., Eastern Book Company,
2013).

2. S. Paul et al, Mulla’s The Code of Civil Procedure, 1908: Vol. II (14th Ed.,
Lexis Nexis Butterworths, 2005).

3. S.C. Sarkar, The Code of Civil Procedure, Vol. II (10th Ed. (2nd rep.),
2005).

4. Y. Rama Rao, Practical Guide to the code of Civil Procedure Code, (4th
Ed., 2004).

Online Sources:

1. http://www.scconline.com
2. http://www.manupatrafast.com
3. https://www.lawctopus.com

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