Setting Aside of an ex-parte Order
📘 Setting Aside of an Ex-Parte Order
🔹 What is an Ex-Parte Order?
An ex-parte order is a judicial decision passed in the absence of one party, usually the defendant, who fails to appear in court despite due notice.
Such orders are common when the defendant does not respond or appear, and the court proceeds to pass orders or even decree in favor of the plaintiff.
🔹 Why set aside an Ex-Parte Order?
Sometimes, the party against whom the ex-parte order is passed may have been unable to appear for valid reasons like illness, improper service of summons, or some other sufficient cause.
The party may apply to the court to set aside the ex-parte order and seek a fresh hearing.
🔹 Relevant Provisions in CPC
Order IX Rule 13 CPC deals with setting aside an ex-parte decree.
Though it specifically refers to ex-parte decrees, courts treat setting aside ex-parte orders under the same principles of “sufficient cause” and “adequate explanation.”
🔹 Grounds for Setting Aside Ex-Parte Orders
Sufficient Cause for Non-Appearance
The defaulting party must show valid reasons (e.g., sickness, absence beyond control, improper service of summons).
Promptness in Applying
The party must apply as soon as they learn of the ex-parte order or decree, without undue delay.
Prima Facie Defense
The applicant must demonstrate a prima facie defense on merit — a valid case to be heard.
No Prejudice to Opposite Party
Setting aside should not unfairly prejudice the other side.
🔹 Procedure to Set Aside Ex-Parte Order
File an application under Order IX Rule 13 (for decree) or under Section 151 CPC (inherent powers of the court) or as permitted by the court.
The court hears the application and may restore the case to its original stage or recall the ex-parte order.
The court’s primary objective is to ensure fair hearing and justice.
⚖️ Important Case Laws on Setting Aside Ex-Parte Orders
1. S.B. P. & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618
Held: The party applying to set aside ex-parte decree/order must satisfy two conditions:
Show sufficient cause for their non-appearance.
Show a prima facie defense on merits.
Court emphasized liberal approach for setting aside ex-parte decrees to secure justice but balanced against preventing abuse of process.
2. M.S. Sheikh v. Union of India, AIR 1970 SC 1089
Held: The test is whether the defendant has a reasonable cause for non-appearance.
Mere negligence or willful absence cannot be condoned.
Court must examine the reason for default carefully.
3. Settu v. Ravikumar, AIR 1954 SC 45
Held: The application to set aside ex-parte order must be made without unnecessary delay.
Delay itself can be a sufficient reason to refuse the application.
4. Abdul Razak v. M. Abdulla, AIR 1955 SC 549
Held: A mere statement of ignorance of the suit or summons is not enough.
Applicant must give satisfactory explanation.
🔹 Distinction Between Setting Aside Ex-Parte Order and Review
Setting aside is to restore the case for hearing when a party was absent without fault.
Review is correction of errors apparent on the face of the record, usually within the same case.
📝 Summary Table
| Aspect | Explanation |
|---|---|
| What is it? | Cancelling an order/decree passed without a party’s presence |
| Applicable Rule | Order IX Rule 13 (ex-parte decree), Section 151 CPC (for orders) |
| Conditions for Setting Aside | Sufficient cause for non-appearance, prima facie defense, promptness in application |
| Effect | Case is restored to original stage for fresh hearing |
| Time Limit | No fixed statutory period, but delay can cause rejection |
| Purpose | To ensure fair hearing and prevent miscarriage of justice |
💡 Practical Tips
If you receive notice of an ex-parte order or decree, act immediately.
Gather proof for your non-appearance (medical records, communication, etc.).
Prepare a clear defense and file the application promptly.
Courts lean in favor of hearing both parties unless the defaulting party is negligent.
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