On what grounds can an ex parte decree be set aside under Order IX Rule 13 CPC?

The defendant may seek setting aside of an ex parte decree by showing that summons was not duly served or that sufficient cause prevented the defendant from appearing when the suit was called for hearing.

What is the limitation period for an application under Order IX Rule 13 CPC?

Article 123 of the Limitation Act, 1963 generally prescribes 30 days. Time ordinarily runs from the date of the decree, or where summons or notice was not duly served, from the date when the applicant had knowledge of the decree.

Affidavit to Set Aside Ex Parte Decree under Order IX Rule 13 CPC

Legal correction: The applicable provision is Order IX Rule 13 of the Code of Civil Procedure, 1908, not Order VIII Rule 13. Order IX Rule 13 concerns setting aside a decree passed ex parte against a defendant.

When a civil court has passed an ex parte decree against a defendant, the defendant may apply to the court that passed the decree for an order setting it aside. The application must be supported by facts showing one of the grounds recognised by Order IX Rule 13 CPC and should ordinarily be accompanied by a properly verified affidavit.

Ground 1 - Summons not duly served The defendant may establish that summons was not served in the manner required by law and that the defendant did not receive proper notice of the proceeding.

Ground 2 - Sufficient cause The defendant may show sufficient cause that genuinely prevented appearance when the suit was called for hearing.

Sample Affidavit for Application under Order IX Rule 13 CPC

This is a general specimen. Delete any paragraph that does not match the facts and state only facts that the deponent can truthfully verify.

IN THE COURT OF __________________________ AT __________________
MISCELLANEOUS APPLICATION NO. ______ OF 20____
IN
CIVIL SUIT NO. ______ OF 20____

____________________________ APPLICANT / DEFENDANT

VERSUS

____________________________ RESPONDENT / PLAINTIFF

AFFIDAVIT

I, ________________________, son/daughter/wife of ________________________, aged about ____ years, resident of ____________________________________________, do hereby solemnly affirm and state as follows:

1. That I am the defendant in the above suit and the applicant in the accompanying application under Order IX Rule 13 of the Code of Civil Procedure, 1908. I am well acquainted with the facts and circumstances of the case and am competent to swear this affidavit.

2. That an ex parte decree/order dated ____________ came to be passed against me in the above suit.

3. That I could not appear before this Hon'ble Court when the suit was called for hearing because ________________________________________________________________________________.

4. That the summons in the suit was not duly served upon me. The facts relating to defective/non-service are as follows: ________________________________________________________________________________.

OR, WHERE APPLICABLE:

4A. That although I had notice of the proceeding, I was prevented by sufficient cause from appearing before this Hon'ble Court on the relevant date because ________________________________________________________________________________.

5. That my non-appearance was neither wilful nor deliberate and I had no intention to avoid the proceedings or delay the adjudication of the suit.

6. That I first obtained knowledge of the ex parte decree on ____________ when ________________________________________________________________________________. Immediately thereafter, I took steps to obtain legal advice and file the accompanying application.

7. That I have substantial and bona fide grounds to contest the suit on merits. Without entering into unnecessary evidence at this stage, the principal defence is that ________________________________________________________________________________.

8. That serious prejudice and irreparable loss would be caused to me if the ex parte decree is allowed to stand without giving me an opportunity to contest the suit, whereas the respondent can be adequately protected by such terms, including costs, as this Hon'ble Court may consider appropriate.

9. That the accompanying application has been filed within the prescribed period of limitation. If there is any delay, the applicant has filed / shall file an appropriate application seeking condonation of delay setting out the reasons for such delay.

10. That it is therefore just and necessary in the interests of justice that the ex parte decree dated ____________ be set aside and the applicant be permitted to participate in the suit and place the defence on record in accordance with law.

DEPONENT

VERIFICATION

Verified at ________________ on this ____ day of ________________, 20____, that the contents of paragraphs 1 to ____ of this affidavit are true and correct to my knowledge and/or based on records believed by me to be true, and that nothing material has been concealed therefrom.

DEPONENT

Attestation, oath and notarisation requirements should be completed according to the rules and practice of the court in which the application is filed.

Order IX Rule 13 CPC: Setting Aside an Ex Parte Decree

Order IX Rule 13 of the Code of Civil Procedure, 1908 enables a defendant against whom an ex parte decree has been passed to apply to the court that passed the decree to set it aside.

The court may set aside the decree where it is satisfied that (a) summons was not duly served, or (b) the defendant was prevented by sufficient cause from appearing when the suit was called for hearing. The court may impose appropriate terms, including costs.

The proviso also makes clear that a decree should not be set aside merely because of an irregularity in service if the court is satisfied that the defendant actually had notice of the date of hearing and sufficient time to appear and answer the plaintiff's claim.

Official Code of Civil Procedure, 1908 - India Code

Limitation: Article 123 of the Limitation Act, 1963

Article 123 of the Schedule to the Limitation Act, 1963 generally prescribes a period of 30 days for an application to set aside a decree passed ex parte.

The period ordinarily runs from the date of the decree. Where summons or notice was not duly served, limitation is generally computed from the date when the applicant had knowledge of the decree.

If the application is filed after the prescribed period, the applicant should examine whether an application for extension/condonation under the Limitation Act is maintainable on the facts and state the complete cause for delay.

Official Limitation Act, 1963 - India Code

Practical Filing Notes

Obtain and attach a certified or court-generated copy of the ex parte decree/order, where required.
Give precise dates of attempted service, actual knowledge, non-appearance and filing.
If relying on non-service, identify the defect in service and support it with available records such as process-server reports, address proof or other relevant documents.
If relying on sufficient cause, explain the cause specifically and attach supporting records wherever available.
If the application is beyond 30 days, address limitation separately and file an appropriate delay-condonation application where legally maintainable.
Follow applicable State amendments, High Court rules, court-fee requirements, filing practice and affidavit-attestation requirements.

Frequently Asked Questions

Is an ex parte order the same as an ex parte decree?

Not always. Order IX Rule 13 specifically deals with setting aside an ex parte decree. If only an interlocutory order declaring a party ex parte has been passed and no decree has yet followed, the appropriate procedural remedy may differ and should be selected according to the stage and nature of the order.

Is defective service alone enough to set aside the decree?

Not necessarily. The proviso to Order IX Rule 13 prevents setting aside merely for an irregularity in service where the court is satisfied that the defendant had notice of the hearing date and sufficient time to appear and answer the claim.

What is "sufficient cause"?

It depends on the facts of each case. The affidavit should set out the actual circumstances that prevented appearance and, wherever possible, support them with documents or other reliable material.

Can this specimen be filed without modification?

No. The court name, case number, dates, grounds, limitation facts, defence, verification and relief must be tailored to the actual case. Local procedural rules and State amendments should also be checked.

Legal information notice: This page is a general drafting specimen and not a substitute for case-specific legal advice. The precise remedy can depend on whether an ex parte decree has actually been passed, the mode of service, the date of knowledge, limitation and local procedural rules.