Chamber Notes
Notice of the Date of Hearing: The Two Remedies Against an Ex Parte Decree, and the Order They Must Be Taken In
8 October 2026 · 17 min read
A decree passed in the absence of the defendant raises two separate questions, and it is worth keeping them apart before looking at what the Code does with them. The first is whether the decree is right — whether, on the material before it, the Court was entitled to grant what it granted. The second is whether the absence should have been allowed to produce a decree at all. The two questions have nothing to do with each other. A decree that is unimpeachable on the plaintiff's evidence may still have been passed against a defendant who never received the summons; a defendant who stayed away deliberately may still have a decree against him that is wrong on the law.
The Code of Civil Procedure, 1908 answers both, and answers them through different provisions, before different forums, on different time limits. Order IX Rule 13 answers the second. Section 96(2) opens the route to the first. What makes the arrangement worth examining is not that there are two remedies — concurrent remedies are common enough — but that the Code, by an Explanation inserted in 1976, made the order in which they are taken decisive, and did so in one direction only.
What "ex parte" names
An ex parte decree is not a judgment by default. The Code never provides that the plaintiff wins because the defendant is absent. What it provides is that the hearing proceeds without him.
Order IX Rule 6(1)(a) is the operative provision: where the plaintiff appears and the defendant does not, "if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte". The clause in that form dates from the 1976 amendment. Two things in it repay attention. The first is that service must be proved, not assumed — clauses (b) and (c) of the same sub-rule deal with the alternatives, directing a second summons where due service is not proved, and a postponement where the summons was served but not in time to enable the defendant to appear and answer. The second is the word "may". Even on proved service, the order to hear the suit ex parte is discretionary.
What follows that order is a hearing. The plaintiff still has to prove his case; the Court still has to find the facts. The absence removes the defence, not the burden. The Code says this most plainly at the appellate stage, where the Explanation to Order XLI Rule 17(1) provides that nothing in that sub-rule "shall be construed as empowering the Court to dismiss the appeal on the merits" when the appellant does not appear. The same logic runs through Order IX: non-appearance has procedural consequences, not evidentiary ones.
That is why the two questions stay separate. The decree that emerges from a Rule 6 hearing is a decree on evidence, and is open to the ordinary objections any decree is open to. The absence is a distinct defect, and the Code deals with it distinctly.
The remedy that expires before the decree
Before Rule 13 there is Rule 7, and it is the cheapest remedy in the Order. Where the Court has adjourned the hearing of the suit ex parte, and the defendant "at or before such hearing appears and assigns good cause for his previous non-appearance", he may, on such terms as to costs or otherwise as the Court directs, "be heard in answer to the suit as if he had appeared on the day fixed for his appearance".
Nothing has to be set aside. There is no application to be filed within a period, no decree to be reopened, no notice to the opposite party to be served. The defendant walks back into a suit that is still running, and the fiction the rule supplies — "as if he had appeared" — restores him to the position he would have occupied. The standard is "good cause", not the "sufficient cause" that Rule 13 demands, and the rule says nothing about proving non-service.
The condition is the timing. Rule 7 operates while the hearing stands adjourned. Once judgment is pronounced and the decree follows, there is no adjourned hearing to appear at, and the defendant's position changes completely: he must now displace a decree rather than join a trial. The Code offers its least demanding remedy for the shortest window, and the window closes when judgment is pronounced rather than on any day the defendant is told about.
Rule 13 does not test the decree
Once the decree exists, Rule 13 is the provision addressed to the absence. It allows a defendant against whom a decree has been passed ex parte to apply "to the Court by which the decree was passed for an order to set it aside". If he satisfies that Court of either of two things — "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".
Three features of that provision follow from the question it is asked to answer.
It goes back to the Court that passed the decree. This is the one Court in the system that can know, from its own record and its own order sheet, what was proved about service and what was done on the day. The enquiry is into events in that courtroom.
Neither ground concerns the merits. A defendant who shows that the summons was never served does not have to say what his defence is, still less that it would have succeeded. The rule asks whether the absence was excusable, and if it was, restores the trial. It does not ask whether restoring the trial will change the result.
And the consequence is mandatory. The Court "shall" set the decree aside once satisfied; the discretion the rule preserves is over terms, not outcome. Rule 14 then adds the one procedural condition: no decree is to be set aside on such an application "unless notice thereof has been served on the opposite party". The first proviso to Rule 13 handles a related difficulty — where the decree is of such a nature that it cannot be set aside against the applicant alone, it may be set aside against the other defendants also, so that the setting aside does not produce two inconsistent decrees in one suit.
It is worth noticing what the defendant's position is not. The Code's treatment of the plaintiff's absence is harsher in one respect: under Rule 9(1), where a suit is dismissed under Rule 8 because the plaintiff did not appear, he "shall be precluded from bringing a fresh suit in respect of the same cause of action", and his only route back is an application to set the dismissal aside. Where the dismissal is under Rule 2 or Rule 3, Rule 4 gives him a choice — a fresh suit, subject to limitation, or an application. For the defendant no such choice arises at all. A decree has been passed against him; a fresh suit is not a remedy he could want. Rule 13 is the whole of what Order IX gives him.
The proviso that narrows one ground and not the other
The 1976 amendment added a second proviso to Rule 13: "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".
Read against the two grounds in the body of the rule, the proviso is precisely targeted. It qualifies the first — non-service — and leaves the second alone. The word carrying the limitation is "merely": an irregularity in service, by itself, is not enough where the defendant knew the date and had time to prepare. A defendant relying on sufficient cause for non-appearance is untouched by it; so, on the proviso's own terms, is a defendant who shows not an irregularity in service but no service at all.
The test the proviso substitutes is knowledge. Not whether the process server followed Order V, but whether the defendant had notice of the date of hearing. The effect is to stop a defect in the mode of service, standing alone, from undoing a decree the defendant had the opportunity to resist.
The Limitation Act, 1963 then pushes in the opposite direction on a related point. Article 123 governs an application to set aside an ex parte decree, and its Explanation provides that, for the purpose of that article, substituted service under Order V Rule 20 of the Code "shall not be deemed to be due service". The two provisions are not in conflict — one fixes when time begins to run, the other fixes when a decree may be set aside — but they show the legislature treating the same underlying fact, substituted service, as sufficient for some purposes and not for others. In both places the real question has been reduced to the same one: did the defendant in fact know when to come.
Section 96(2) opens a second door
The Code does not confine the defendant to Rule 13. Section 96(1) provides that, save where the Code or another law expressly provides otherwise, an appeal lies from every decree of a Court exercising original jurisdiction, and sub-section (2) then states, in a single line, that "An appeal may lie from an original decree passed ex parte".
The line is there because it needed to be. An ex parte decree is passed in circumstances where the defendant has filed nothing and argued nothing, and a system might well have held that a party who did not contest below cannot complain above. Section 96(2) forecloses that. The companion sub-section is instructive by contrast: sub-section (3) bars an appeal from a decree passed with the consent of parties. A decree a defendant agreed to is unappealable; a decree passed in his absence is not.
What the appeal does is test the decree. It asks whether the findings are supportable and the law correctly applied, on a record in which the defendant's evidence is absent — because he was absent. What it cannot do is examine the absence. The reason the defendant did not appear is not in the record of the suit; it is the subject matter of an application supported by affidavit, to be enquired into by the Court that was there. So the appeal and the application are not alternative routes to the same relief. They are addressed to the two different questions with which this began, and a defendant who has a good answer on one may have none on the other.
The Explanation runs in one direction only
Having kept the two remedies distinct, the Code then connects them, and it does so asymmetrically. The Explanation inserted in Rule 13 in 1976 provides that where there has been an appeal against a decree passed ex parte, "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".
The provision repays reading closely in three respects.
First, it is the disposal that closes the application, not the filing. A pending appeal does not bar a Rule 13 application on the Explanation's own words; a decided one does.
Second, the ground of disposal is left unqualified. The Explanation does not confine itself to a disposal on the merits; it says disposed of on any ground other than withdrawal. On those words an appeal dismissed as barred by limitation, or for the appellant's non-appearance, is as much a disposal as one decided after argument. How far that reading extends to an appeal that was never heard at all is a question the text does not settle, and it is worth treating as open rather than assuming it either way. What the text does settle is the single preserved exit: withdrawal. A defendant who takes back his appeal before it is dealt with keeps his Rule 13 remedy, and the Explanation names no other escape.
Third, nothing in the Code says the converse. A defendant whose Rule 13 application is refused is not barred from appealing the decree; the Explanation says nothing about him, and there is no provision elsewhere that does. The contrast with the Code's treatment of a remand order is sharp. Section 105(2) provides that a party aggrieved by an appealable order of remand who does not appeal from it "shall thereafter be precluded from disputing its correctness". That is an express preclusion attached to a failure to appeal, and the Code supplies no equivalent here.
So the sequence matters, and it matters only one way round. Appeal first and the application is gone; apply first and the appeal remains. A defendant who does not know this will reach for the remedy that is more familiar and lose the one that was addressed to his actual complaint.
The appellate counterpart shows that both restrictions on Rule 13 were deliberate. Order XLI Rule 21 gives a respondent against whom an appeal was heard ex parte the same relief in the same words — he may apply to re-hear the appeal if he satisfies the Court "that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing". But Rule 21 carries no second proviso about notice of the date of hearing, and no Explanation about the effect of a further appeal. The grounds were copied; the qualifications were not. Whatever the reason, the limitations in Rule 13 are specific to the trial-court decree and were not thought to be general features of the Code's treatment of absence.
Only the refusal can be appealed
The order on a Rule 13 application is itself appealable, but not both ways. Order XLIII Rule 1(d) lists, among the orders from which an appeal lies under Section 104, "an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte".
Rejecting. An order setting a decree aside is not in the list, and Section 105(1) supplies the general rule that, save as otherwise expressly provided, no appeal lies from an order. The Code's drafting elsewhere in the same rule shows this is a choice rather than an oversight. Clause (j) covers an order under Order XXI Rule 72 or Rule 92 "setting aside or refusing to set aside a sale" — both directions, in terms. Clause (t) covers only an order of refusal to re-admit an appeal under Order XLI Rule 19 or to re-hear one under Rule 21. Where the Code wants both, it says both.
The parenthesis in clause (d) is a second limitation, and an easily missed one: the appeal from a rejection lies only "in a case open to appeal". Where the decree itself was not appealable, the refusal to set it aside is not appealable either.
The plaintiff whose ex parte decree has been set aside is not left without recourse; he is left with a later one. The suit is restored, it is tried, and if it ends in a decree against him he may, under Section 105(1), set forth the setting aside as a ground of objection in his memorandum of appeal, any error in it having affected the decision of the case. Order XLIII Rule 1A(1), also inserted in 1976, puts the same point affirmatively: where an order is made under the Code against a party and a judgment and decree follow against him, he may in an appeal against the decree contend that the order should not have been made. The challenge survives; it simply waits.
Thirty days, and ninety
The periods complete the picture. Article 123 of the Limitation Act allows thirty days for an application to set aside an ex parte decree, running from the date of the decree, "or where the summons or notice was not duly served, when the applicant had knowledge of the decree". The same article covers an application "to rehear an appeal decreed or heard ex parte", so the Order XLI Rule 21 remedy runs on the same period and the same starting point. Article 116 allows an appeal under the Code ninety days where it lies to a High Court, and thirty days where it lies to any other court.
The consequence is that the two remedies are not equally long. Where the first appeal lies to a subordinate appellate court, both periods are thirty days and the defendant must choose quickly between them. Where it lies to a High Court, the appeal window is three times the application window — and it is the longer remedy that, once exercised and disposed of, destroys the shorter one.
Two qualifications keep that from being a trap in one direction and make it one in the other. The first is Section 5 of the Limitation Act, which allows any appeal or any application other than one under Order XXI of the Code to be admitted after the prescribed period where the applicant satisfies the court that he had sufficient cause for not making it in time. A Rule 13 application is not an Order XXI application, so the thirty days are extendable on cause shown. The second is that no such provision helps a defendant on the other side of the Explanation. Expiry of a period is a delay a court may condone; a bar on the application lying at all is not. So the defendant who is late with his Rule 13 application has something to ask for, and the defendant who has already had his appeal disposed of does not.
The starting point in Article 123 is the one concession the scheme makes in the defendant's favour, and it is a substantial one. Where the summons was not duly served, time runs not from the decree but from knowledge of it — which is the only workable rule, since a defendant who was never served has no reason to know a decree exists. It is also the same question the second proviso to Rule 13 asks, approached from the other end. Knowledge of the hearing determines whether the decree can be set aside; knowledge of the decree determines when the application can be made.
What the structure assumes
Put together, the scheme rests on a premise worth stating: that absence is remediable, but once.
The Code does not punish non-appearance. It does not treat it as an admission, does not permit a decree on the merits to be founded on it, and does not require a defendant seeking to undo it to show that his defence would have won. It gives him a cheap remedy while the trial is still on foot, a mandatory one for a short period after the decree, and an appeal that runs independently of both.
What it will not do is let him have the absence examined twice, or have it examined after the decree has already been tested on its merits. That is the work the 1976 Explanation does. An appeal is a submission that the decree is wrong on the material; having made it and lost, the defendant cannot return to say that the material was incomplete because he was not there. The election is not between two remedies for one grievance. It is a rule that the two grievances must be raised in the right order, because the second of them presupposes a trial that the first has already asked the appellate court to accept as adequate.
The practical consequence is narrow and worth being plain about. For a defendant who has just discovered an ex parte decree, the first question is not which remedy is stronger. It is whether the complaint is about the decree or about the absence — and if there is any prospect that it is about the absence, the application comes first, because the appeal taken first cannot be undone except by withdrawing it before it is heard.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.