Ex parte hails from Latin language which means ‘by or for one party’ or ‘by one side’.
An ‘Ex parte decree’ is a decree passed against a defendant in absentia. Despite service of summons, where on the date of hearing only plaintiff does and a defendant does not appear the Court may hear the suit ex parte and pass a decree against the defendant. The legal validity, enforceability and operation of such decree is similar to any bi-parte decree.
Where a defendant absents himself from court on date of hearing mentioned in the summons duly served on him, the court is empowered under Order 9, Rule 6(1)(a) to proceed ex parte and to pass an ex parte decree against such defendant thereon.
According to the principle of natural justice, a case must be decided in the presence of both parties and both parties should be given appropriate opportunity to present them. Though in some circumstances a court can award an ex parte decree. When the plaintiff appears and the defendant doesn’t, at the time when the suit is called out for hearing and the defendant is duly served with the summon of appearance, then the court may hear the suit ex parte and pass the decree against him. However, these decrees are neither null nor void nor inoperative but are merely voidable and unless and until they are annulled on legal and valid grounds, they are proper, lawful, operative and enforceable like a bi-parte decree and has all the force of a valid decree. A judge is required to meet with all parties in a case and not with just one, there come circumstances where this rule doesn’t apply and the judge is allowed to meet with just one side, such as where a plaintiff requests an order or dismissal before the answer or appearance of the defendant.
A party against whom an ex parte decree is passed can seek relief by the following ways:
Set Aside: Applying to the Court which has passed such decree to set aside the decree.
Appeal: Preferring an appeal against the decree.
Review: Applying for revision; and
Fraud: Suit on fraudulent grounds.
All the remedies are concurrent and can be prosecuted concurrently.
A suit to set aside an ex parte decree is not maintainable. But if an ex parte is alleged to have obtained by fraud, the defendant can file a regular suit to set aside such decree. It is a settled law that fraud vitiates the most solemn transactions. In such suits, the owner is on the party whohttps://indianlegalsolution.com/ex-parte-under-civil-procedure-code/ alleges that the ex parte decree passed against him was fraudulent.
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