An ex parte decree is a decree passed in the absence of the defendant where the plaintiff appears and the defendant does not appear when the suit is called on the hearing. If it is proved that the summons was duly served, the court may make an order that the suit be heard ex parte.
The court shall then proceed to take and determine on evidence, and pass a decree in favour of the plaintiff if a prima facie case is made out by him. [O. 9 R. 6 (a)]. An ex parte decree may be passed either at the first hearing or at an adjourned hearing.
Setting aside ex parte decree:
In order to have an ex parte decree set aside the defendant must apply to the court by which the decree was passed for an order to set it aside and satisfy it either 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.
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ADVERTISEMENTS:
On being satisfied the court shall make an order setting aside the decree as against the defendant applying or all them, if it is of such a nature that it cannot be set aside against the applicant only, upon such terms as to costs at it thinks fit. [O. 9. R. 13].
The proviso to rule 13 further lays down 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 plaintiffs claim.
The Explanation added to rule 13 provides that where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal; no application shall lie under this rule for setting aside that ex parte decree.
ADVERTISEMENTS:
The only grounds mentioned in the above rule for setting aside the ex parte decree are that the defendant had not been actually served with the summons of the suit or, in spite of service; the defendant was prevented by any sufficient cause from appearing at the date of hearing.
The onus of proving not duly served is on the applicant. The rule can have no application where the defendant refused the summons. Sufficient cause must be other than lack of knowledge of the proceedings. The question to be considered in such cases is whether the defendant honestly intended to toe presented at the hearing and did his best to do so.
The merits of a case should not form part of an element for consideration in disposing of an application to set aside a dismissal for default nor should the trial court set aside an ex parte decree for the ends of justice where it is satisfied that there was no sufficient cause for the non-attendance of the party.
If an ex parte decree is set aside in contravention of the above provisions, it will amount to a material irregularity and the order is liable to be set aside in revision.
