Rupali Ramteke 18 April 2020

Execution of decree under code of civil procedure?

Raja of a State obtained an ex parte decree against his treasurer from a court of his own native state. The treasurer had, however, left the state service and settled in Delhi at the time of institution of the suit which resulted in aforesaid ex parte decree. Raja then brought action in a court at Delhi on the basis of the ex parte judgement and objection was raised by Treasurer that Court of the native state that pronounced judgement was not a court of competent jurisdiction and decree was not on merits. Give reasons and decide.

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P. Venu (Advocate) 18 April 2020

A good question paper! You may try to solve and post the answer.

Karishma Yadav 18 April 2020

Hello,

Thank you for your question.

Ex- parte Decree is given under Order 9 Rule 13 of the Civil Procedure Code, which is passed against a defendant in absentia. If an ex parte decree is passed despite due notice does not cause failure to justice.

The right to be heard in a suit is one of the important principles of natural justice. And even after giving sufficient opportunity, if the party does not avail it, the court hears the suit ex parte. A decree based on compromise cannot be treated as an ex parte under O 9, R 13. However, non- appearance of one party does not entail that an ex parte decree would follow.

In order to set aside this decree the petitioner needs to satisfy the court that he had sufficient cause for his absence on the date of hearing and when the evidence was called for hearing. An application under Order 9 Rule 13, cannot be entertained on moral or humanitarian grounds.

Relief against Ex parte decree-

He may ask for setting aside the decree on the grounds of summons not duly served, conditional relief. In the case of Guwahati University v. Niharalal Bhattacharjee, the Supreme Court held that the limitation period for filing an application for setting aside is 30 days from the date of knowledge of the decree.
He may prefer an appeal against the decree under Section 96(2) of CPC.
He may apply for revision of the decree under Rule 1 of Order XLVII.
He may apply on fraudulent grounds.

In the case of Bhanu Kumar Jain v. Archana Kumar, it was held that “a right to question the correctness of a decree in a first appeal is statutory right. Such right shall not be curtailed nor shall any embargo be fixed upon unless the statute expressly says so.”

Talking about the jurisdiction, the court having the jurisdiction over the area in which the defendant resides or where the cause of action arises, is a competent court to try the matter. Here, if the cause of action arose in the native state, then the court had the jurisdiction to try the suit.

Thank you,

Regards,

Karishma yadav

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