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Setting aside decree ex parte against defendant
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:
*[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]
**[Explanation.-Where there has been an appeal against a decree passed exparte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]
HIGH COURT AMENDMENTS
Allahabad.-
In Order IX, in rule 13, after second proviso, insert the following proviso, namely:-
"Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim."
Andhra Pradesh.-
Same as in Madras.
Bombay.-
In Order IX, for rule 13, substitute the following rule, namely:-
"13. Setting aside decree ex parte against defendant.-
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 the was sufficient cause for his failure to appear 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:
Provided also that no such decree shall be set aside merely on the ground of irregularity of service of summons, if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time it enable him to appear and answer the plaintiff's claim.
Explanation I.-Where a summons has been served under Order V, rule 15, 01, adult male member having an interest adverse to that of the defendant in the subject, matter of the suit, it shall not be deemed to have been duly served within the meaning of this rule.
Explanation II.-Where there has been an appeal against a decree passed ex party under this rule, and the appeal has been disposed of on 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." (w.e.f. 1-10-2023)
Calcutta.-
In Order IX, renumber rule 13 as sub-rule (1) thereof and insert the following sub-rule, namely:-
"(2) The defendant shall, for service on the opposite party, present along with his application under this rule either-
(i) as many copies thereof of plain paper as there are opposite parties, or
(ii) in the Court by reason of the length of the application or the number of opposite parties or for any other sufficient reason grants permission in this behalf, a like number of concise statements."
[Vide Notification No. 3316-G, dated 3rd February, 1933.]
Delhi.-
Same as in Madhya Pradesh.
Gauhati.-
Same as in Calcutta.
Gujrat.-
Same as in Madhya Pradesh.
Himachal Pradesh.-
Same as in Madhya Pradesh.
Kerala.-
In Order IX,-
(i) renumber rule 13 as sub-rule (1) thereof;
(ii) at the end of the existing proviso insert the words "after notice to them";
(iii) after the existing proviso so amended, insert a further proviso as in Madras;
(iv) after sub-rule (1) as so renumbered, insert sub-rule (2) as in Madras, (w.e.f. 9-6-2024).
[Ed.-This amendment relates to rule 13 prior to its amendment by Central Act 104 of 1976, sec. 59 (w.e.f. 1-2-2024).]
Madhya Pradesh.-
In Order IX:-
(a) renumber rule 13 as sub-rule (1) thereof;
(b) in sub-rule (1) as so renumbered, substitute the words "there was sufficient cause for his failure to appearing" for the words "he was prevented by any sufficient cause from appearing".
(c) in sub-rule (1) as so renumbered, second proviso and Explanations are same as in Bombay;
(d) after sub-rule (1) as so renumbered, insert the following sub-rule, namely:-
"(2) The provisions of section 5 of the Indian Limitation Act, 1908 (9 of 1908), shall apply to applications under sub-rule (1)."
Madras.-
In Order IX,-
(a) renumber rule 13 as sub-rule (1) thereof;
(b) same as in Madhya Pradesh (b).
Orissa.-
In Order IX-
(a) renumber rule 13 as sub-rule (1) thereof;
(b) same as in Madhya Pradesh (b);
(c) in sub-rule (1) as so renumbered, renumber Explanation as Explanation I and insert the following Explanation, namely:-
"Explanation II.-A summons served under Order V, rule 15 on an adult male member having an interest adverse to that of the defendant in the subject-matter of the suit shall not be deemed to have been duly served within the meaning of the rule."
[Vide Notification No. 24-X-7-52, dated 14th May, 1954.]
[Ed.-These amendments relate to rule 13 prior to its amendment by Central Act 104 of 1976, sec. 59 (w.e.f. 1-2-2024).]
*Added by Act No. 104 of 1976 (w.e.f. 1-2-2024).
**Ins. by Act No. 104 of 1976 (w.e.f. 1-2-2024).
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