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THE FIRST SCHEDULE · ORDER IX Appearance of parties and consequence of non-appearance · Setting aside Decrees ex parte

Order IX Rule 13: Setting aside decree ex parte against defendant

The Code of Civil Procedure, 1908

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 be set aside as against all or any of the other defendants also:

1[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.]

2[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parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]

Footnotes in the official text

  1. 1.The proviso added by Act 104 of 1976, s. 59 (w.e.f. 1-2-1977).
  2. 2.Explanation ins. by s. 59, ibid. (w.e.f. 1-2-1977).

Questions on this rule

8 questions in 34 of our papers cite Order IX Rule 13. Try these from the free papers:

  1. 1. An ex parte decree was passed against D. D filed a first appeal under Section 96(2) CPC against that decree, and the appeal was heard and dismissed on merits. D then applied to the trial court under Order IX Rule 13 CPC to set aside the same ex parte decree. The application is:

  2. 2. Under Order XXXVII Rule 4 of the Code of Civil Procedure, 1908, after a decree has been passed in a summary suit, the Court:

  3. 3. Under the second proviso to Order IX Rule 13 CPC, a court shall not set aside an ex parte decree merely on the ground of an irregularity in the service of summons if it is satisfied that the defendant:

Practise questions on Civil Procedure Code