📘 CIVIL PROCEDURE CODE : ORDER IX

TOPIC:

• Remedies available to a defendant in the event of an ex parte decree being passed against him in terms of Order 9 Rule 13 and the extent and limitation thereof

⚖️ Supreme Court Decision

Appeal in terms of Order 43 Rule 1

• When an application under Order 9 Rule 13 of is dismissed, the defendant can only avail a remedy available there against viz. to prefer an appeal in terms of Order 43 Rule 1.

• The respondents are entitled to raise their contentions as regards merit of the plaintiff’s case in appeal confining their contentions to the materials which are on record of the case.

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⚖️ CIVIL PROCEDURE CODE EXPLAINED

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📚 THE LAW OF EX-PARTE DECREES:

Case Study: Bhanu Kumar Jain v. Archana Kumar [2005 SC]

Judgment of Supreme Court:

Scope of Order 9 Rule 7

• Order 9 Rule 7 postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex parte hearing was passed, only in the event the suit had not been heard.

• In a case where hearing of the suit was complete and the court had adjourned for pronouncing the judgment, an application under Order 9 Rule 7 would not be maintainable.

Scope of appeal u/s 96(2)

• An appeal against an ex parte decree in terms of section 96(2) could be filed on the following grounds:

(i)

• the materials brought on record by the plaintiff in the ex parte proceedings would not entail a decree in his favour

(ii)

• the suit could not have been posted for ex parte hearing

Scope of Order 9 Rule 13

• In an application under Order 9 Rule 13, however, apart from questioning the correctness of an order posting the case for ex parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date.

Options for the defendant

• When an ex parte decree is passed, the defendant has two clear options:

– one, to file an appeal u/s 96(2)

– another, to file an application for setting aside the decree in terms of Order 9 Rule 13

• Other options:

– to file a review petition and

– to file a suit for setting aside the ex parte decree on the ground of fraud

When appeal is dismissed

• He can take recourse to both the proceedings simultaneously but where the appeal is dismissed [as a result whereof the ex-parte decree passed by the trial court merges with the order passed by the appellate court], an application under Order 9 Rule 13 would not be maintainable having regard to the Explanation appended to Order 9 Rule 13.

Where Rule 13 application is dismissed

• However, that Explanation does not suggest that the converse is also true.

Correctness of an interlocutory order..

• In an appeal filed in terms of section 96, it is also permissible to raise a contention as regards correctness of an interlocutory order passed in the suit, having regard to section 105, subject to the conditions laid down therein.

First appeal is a statutory right

• A right to question the correctness of the decree in a first appeal is a statutory right.

• Such a right shall not be curtailed nor shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so.

Appeal in terms of Order 43 Rule 1

• When an application under Order 9 Rule 13 of is dismissed, the defendant can only avail a remedy available there against viz. to prefer an appeal in terms of Order 43 Rule 1.

• Once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal.

Conflict of decisions to be avoided

• If it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under Order 9 Rule 13, it may lead to conflict of decisions which is not contemplated in law.

• The dichotomy can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it…

• …it would be open to him to argue in the first appeal filed by him u/s 96(2) on merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable.

Decision

• The respondents are entitled to raise their contentions as regards merit of the plaintiff’s case in the said appeal confining their contentions to the materials which are on record of the case.

Order

• The impugned judgment is set aside and the case is remitted to the High Court for consideration on merit.

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❓ Frequently Asked Questions – Order IX & Ex Parte Decrees