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How to set aside ex parte decree passed in civil suit

Shivendra Pratap Singh

Advocate

27/09/2017

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I purchased a plot in Saharanpur for the consideration of thirty-five lakh. The younger brother of the seller has filed a lawsuit for cancellation of the sale deed. I did not present in the court proceeding on some dates because I live in Mumbai. The civil court has passed an ex-parte order. I came to know about it from other sources. What is the remedy available against this decree?

It was your responsibility to present before the court. If you could not be able to appear on some dates, you were to move an adjournment application. The court does not pass an ex-parte decree without giving ample opportunity to the opposite party to present in the court proceeding. When the court finds that the defendant is deliberately remaining absent, the court is bound to pass an ex-parte decree in favour of the plaintiff.

Move an application for setting aside the decree

At this stage, you have a right to set aside that decree if you had sufficient cause to remain absent in the court. You should immediately move an interlocutory application (IA) for setting aside/restoration of the ex-parte decree.

When the defendant had sufficient reason for non-appearance before the court, he can move an IA under Order 9 Rule 13 of the Code of Civil Procedure(CPC) for setting aside the ex-parte decree.

You said that you are living in Mumbai. In this condition, it might be possible that the plaintiff got the decree by placing false evidence before the court. If he obtained the decree by any fraudulent act, then you may also move an application before the court under section 340 of the Code of Criminal Procedure. Adducing false evidence is an offence punishable under section 193-199 of the Indian Penal Code (IPC).

If you don’t want to set aside the ex-parte decree, you can file an appeal under section 96 of the CPC.

Prefer an appeal against the ex-parte decree

In Bhanu Kumar Jain v. Archana Kumar [(2005) 1 SCC 787]; the Supreme Court observed that when an ex-parte decree passed, the defendant has two clear options. First, to file an appeal or to submit an application for setting aside the order regarding Order 9 Rule 13 of the Code. He can initiate both proceedings simultaneously.

Order 9 Rule 13 of the CPC, empowers the Court to set aside the ex-parte decree when the applicant shows “sufficient cause” for his absence.

It is mandatory for you to prove that there was sufficient reason for your non-appearance. In State of Rajasthan v. Shankar Lal, (2009) 16 SCC 116 the Supreme Court is held that the reasons given for restoration of the petition should be satisfactory in considering the facts of the case. If there is no sufficient cause was shown for the restoration of the petition, then it should be dismissed.

The petition must show the cogent reason for absence because the court may examine the facts stated therein. Its contents are vital for determination of sufficient cause. If the court finds that there was adequate reason for absence, then it shall set aside the ex-parte decree.

In Raj Kishore Pandey v. the State of U.P., [(2009) 2 SCC 692] the Supreme Court is held that whether the applicant has made out sufficient cause or not in the application for restoration, the court is required to look at all facts pleaded in the petition.

You have two options against the ex-parte decree. Either you may move a petition for setting aside the decree or file an appeal against that decree.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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