Setting Aside an Ex Parte Decree: Order 9 Rule 13 CPC, Time Limit and Grounds

Sometimes a defendant learns, months after the event, that a civil court has decided a suit against them without hearing them. The summons never arrived, or arrived and was ignored, and the court proceeded ex parte, which means in their absence. The decree can then be enforced, including by attachment of property. The Code of Civil Procedure gives a remedy, but the time is short. This guide explains how to set aside an ex parte decree.

What Does Ex Parte Mean?

When a defendant does not appear on the day fixed, or does not file a written statement within the permitted time, the court can proceed against the defendant in his or her absence under Order 9 Rule 6 and Order 8. The plaintiff then proves the case, usually by affidavit and documents, and the court passes an ex parte judgment and decree. Our guide to the stages of a civil suit shows where this fits.

What Are Your Two Remedies?

A defendant against whom an ex parte decree is passed has two separate routes, and can pursue them one after the other if needed:

• An application to the same court to set the decree aside under Order 9 Rule 13 CPC
• An appeal to the higher court under Section 96(2) CPC, which allows an appeal from an ex parte decree

The application is usually the better first step where the reason is that you did not know of the case, because it goes back to the trial court and lets you defend the suit on the merits.

What Are the Grounds Under Order 9 Rule 13?

The court will set the decree aside if the defendant satisfies it of one of two things:

• The summons was not duly served on the defendant
• The defendant was prevented by sufficient cause from appearing when the suit was called for hearing

Examples of sufficient cause accepted by courts include illness, a bona fide mistake about the date, an advocate’s error that was not the party’s fault, and being out of the country. Courts look at the reason honestly given, and not at technicalities. A mere irregularity in service is not enough if you in fact knew of the suit and were not prejudiced.

What Is the Time Limit?

An application under Order 9 Rule 13 must be filed within thirty days from the date of the decree, or, where the summons was not duly served, from the date the defendant had knowledge of the decree (Article 123 of the Limitation Act). If you file late, you can ask for condonation of delay under Section 5 of the Limitation Act with an affidavit explaining each day of delay. The court may refuse to condone a delay that is casual or unexplained, so move quickly once you know.

What Should the Application Contain?

A clear application, supported by an affidavit, should set out:

• The date you came to know of the decree and how
• Why summons did not reach you, or why you could not attend
• The defence you have to the suit, briefly
• An application for stay of execution of the decree while this is decided

Attach the decree, the case record you have and proof of your address. Courts often impose conditions such as payment of costs or deposit of part of the decretal amount while setting aside the decree.

Can You Stop the Decree From Being Executed?

The court can stay execution of the decree on conditions while the application is pending. Ask for this expressly. If execution has already begun and your property has been attached, say so in the application. See our article on executing a money decree to understand what the other side can do.

What If the Application Is Rejected?

An order refusing to set aside an ex parte decree is appealable under Order 43 Rule 1(d) CPC. You may also challenge the decree itself by appeal under Section 96(2) in some cases, subject to limitation. Seek advice about which route is available on your facts, because pursuing the wrong one can use up the time.

How Can You Avoid an Ex Parte Decree in the First Place?

Always collect and open court post, keep your address current, and appear and file a written statement when a summons arrives. In a commercial suit the timelines are stricter, as explained in our guide to summons and written statements in commercial suits.

Need Help Setting Aside an Ex Parte Decree?

Our Civil and Property Law practice files Order 9 Rule 13 applications and appeals in the Chennai courts and the Madras High Court. Book a consultation through our website and bring the decree and any court papers. This article is general information and not legal advice.