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Bare acts > Code of Civil Procedure, 1908 > Order 9 Rule 13
 
   


 

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 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 sent aside as against all or any of the other defendant 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 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parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule of setting aside the ex parte decree.

HIGH COURT AMENDMENT

Allahabad.- Add the following proviso:

“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 willful conduct would have known: of the date of hearing in sufficient time to enable him to appear and answer the plaintiffs claim.

Andhra Pradesh.- Same as that of Madras.

Assam and Nagaland.- Same as that of Calcutta.

Bombay. Dadra and Nagar Haveli.- For Rule 13 and its marginal note substitute the following as Rule 13 and marginal note:—-—

“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 there 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 willful 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, on an 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 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. (1.10.1983).

Calcutta, Andaman and Nicobar Islands.- Renumber Rule 13 as Rule 13 (1) and add the following:

“(2) The defendant shall for the service on opposite party present along with his applications under this rule either —

(i) as many copies thereof in plain paper as there are opposite parties: or

(ii) if the Court by reason of the length of the application or the number of the opposite parties or for any other sufficient reason grants permission in this behalf a like number of concise statements.”

Delhi, Himachal Pradesh, Punjab, Haryana and Chandigarh.- Renumber Rule 13 as Rule 13 (1) and add the following as sub-rule (2) namely —

Same as that of M.P. (2).

Gujarat.- Renumber Rule 13 as Rule 13(1) and add sub-rule (2) to it:

13(2). Same as that of Madhya Pradesh (d).

Karnataka.- Add the following further proviso to Rule 13:

“Provided further 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 the date of hearing in sufficient time to enable him to appear and answer the plaintiff’s claim.’ (30.3.1967).

Kerala, Laccadive, Minicoy and Amindivi Islands.- (1) Renumber Rule 13 as Rule 13 (1).

(2) Delete the fullstop at the end of the existing proviso and add the words “after notice to them”;

(3) After the existing proviso as amended add a further proviso as in Madras;

(4) Add sub-rule (2) as in Madras (9.6.1959).

Madhya Pradesh.- (a) Renumber the existing rule as sub-rule (1);

(b) Substitute “there was sufficient cause for his failure to appearing” for “he was prevented by any sufficient cause from appearing’ occurring in sub-rule (1) so renumbered;

(c) Add the following as an additional proviso and Explanation to sub-rule (1):
Same as that of 2nd Proviso and Explanation of Bombay.

(d) Add the following as sub-rule (2);

“(2) The provisions of Section 5 of the Indian Limitation Act, IX of 1908, shall apply to application under .t sub-rule (1)”. (16.9.1960)

Madras and Pondicherry.- (1) Renumber Rule 12 as Rule 13 (1) and insert the following as proviso to sub-rule (1):

“Provided further that no Court shall Set aside a decree passed ex parte merely on the ground that there has if been an irregularity in the service of summons, if it be satisfied that the defendant had notice of the date of hearing in sufficient time to appear and answer the plaintiff’s claim.” (R.O.C. No. 1810 of 1926).

(2) Add the following as sub-rule (2):

Same as that of Madhya Pradesh (d).

Orissa.- (i) Delete the Orissa Amendment to Rule 13. (14.5.1984).

(ii) Renumber the existing Explanation to Rule 13 as Explanation - I and add the following Explanation as Explanation-II.

“Explanation II - A summons served under Order 5, Rule 15 on an adult male member having an interest adverse to that of the defendant in the subject matter of the suit shall no be deemed to have been duly served with in the meaning of this rule.”(14.5.1984).

 

 

 

 

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