The term ex-parte means the absence of the other party. A decree is said to be ex-parte when ex-parte proceedings are ordered at the hearing immediately preceding the judgment. Where the there is evidence on the record but defendant is absent and the court determines on merit, the decree cannot be said to ex-parte decree.
Remedies against ex-parte decree:
The remedies available against an ex-parte decree are
Application u/O 9. R. 13:
By means of proceedings under O. 9 r 13, an ex-parte decree may be set aside and a suit revived. The success of an application u/r 13 will result in the re-hearing of the suit from the stage at which the ex-parte proceedings commenced.
An application u/r. 13 can be made by any one of the defendants against whom the decree was passed ex-parte and even if an appeal is filed by a co-defendant. The legal representative of deceased defendant can also apply under this rule. However, only a defendant can apply under this rule and a person who is not a party but is effected by the ex-parte decree can apply u/s 12(2) CPC.
U/O 9 R. 13, there are two grounds on the basis of which an ex-parte decree can be set aside. These are that the summons were 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 condition is satisfied, the court must set aside the decree, and where these conditions are not satisfied the court cannot set aside the decree. The court must apply its conscious mind to the application. The decree cannot be set aside on the basis of mutual agreement between the parties.
Review u/s. S. 114:
A review application to set aside an ex-parte decree can be filed. Similarly, an application to set aside an ex-parte decree, may be treated as an application under Order 47, Rule 1. An application to review a decree passed ex-parte can be filed on the grounds enumerated in rule 1 of 0.47. i.e., such mistake or error of law or fact which are apparent on the face of record.
Failure to apply for setting aside under 0.9 rules 9 or 13 or Order 41 rule 19 will not debar a review application. However, the reason for failure to appear will not itself be a sufficient ground for review.
Application u/s 12(2) CPC:
An application u/s 12(2) CPC can be filed to set aside an ex-parte decree obtained by fraud or misrepresentation or for court’s want of jurisdiction. The mere fact that an ex-parte decree was obtained, will not itself attract the provision of S. 12(2), but an ex-parte decree can be assailed on the aforementioned ground. The fraud or misrepresentation should have been practiced during the proceedings in court and not outside the court. The provisions of this section will not be attracted when the fraud or misrepresentation is alleged not in connection with the proceedings but prior to their initiation.
The finality of judgment is subject to the provisions of S. 12(2). Thus, where fraud is practiced in the service of summons, or by concealment of facts, or in the absence of necessary party or want of jurisdiction the decree may be recalled.
Ex-parte decrees are appeal able u/s 96(2). The decree of an appellate court supersede that of the lower court and where a new decree is passed in appeal, proceedings under sections 12(2), 114 or order 9/13 will be rendered infructuous, as the original decree against which these proceedings were directed will have been superseded in appeal.
If pending determination of an appeal the decree is set aside. The appeal will abate however, neither the rejection of an application u/o 9, r.13 nor the failure to apply it, will bar an appeal from the decree. Where no application is filed u/o 9 r.13. The appellate court can examine the propriety of the ex-parte order itself, and if necessary set aside the decree and remand the case.