Holding

An application under Order IX Rule 13 to set aside an ex‑parte decree is maintainable even when a joint written statement has been filed, and the court may set aside the entire decree; the unreasoned trial‑court order was set aside and the matter remitted for fresh consideration.

Summary

In a suit for declaration of title and possession of land, six defendants were impleaded. Defendants 2 and 5 entered into a compromise with the plaintiff, while an ex‑parte decree was passed against defendants 1 and 6. The latter filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the decree; the trial court allowed it, but the High Court reversed on the ground that a joint written statement had been filed by all defendants. The Supreme Court held that the filing of a joint written statement does not bar an application under Order IX Rule 13, and that the proviso to that rule empowers the court to set aside the entire decree when necessary. It also observed that the trial court’s order was unreasoned and therefore invalid. Exercising its power under Article 142 of the Constitution, the Court set aside both the trial‑court and High‑Court orders and remitted the matter to the trial court for fresh, reasoned consideration. The appeal was allowed.

Issues considered

Whether a joint written statement filed by all defendants bars an application under Order IX Rule 13 to set aside an ex‑parte decree against some defendants.
Whether the proviso to Order IX Rule 13 authorises the court to set aside the entire decree when an ex‑parte decree has been passed against certain defendants.
Whether an order setting aside an ex‑parte decree must be supported by reasons.
Whether the High Court erred in reversing the trial court’s order.
Whether the Supreme Court may set aside both the trial‑court and High‑Court orders under Article 142 of the Constitution.

Legislation cited

Code of Civil Procedure, 1908s. Order 9 Rule 13
Constitution of Indias. Article 142

Subjects

ex‑parte decreeOrder IX Rule 13setting aside decreejoint written statementcivil procedureArticle 142reasoned orderpossession suit

Judgment

[2008] 17 S.C.R. 726
"""'
A MAHESH YADAV & ANR.
v.
RAJESHWAR SINGH & ORS. 'f
(Civil Appeal No. 7316 of 2008)
DECEMBER 16, 2008
B '•
[S. B. SINHA AND CYRIAC JOSEPH, JJ.]

CODE OF CIVIL PROCEDURE, 1908: I
~
Or. 9, r. 13, proviso - Setting aside of decree ex-parte
c against some of the defendants - Trial court setting aside ex
parte decree- High Court reversing order of trial court - Held:
Proviso to r. 13 postulates that when an ex-parte decree has
been passed a.gainst some of the defendants and it is
necessary to set aside the :entire decree, they may file an
application to set aside ex-parte decree and court is not
D powerless in this regard - High Court was not correct in
holding that because a joint written statement was filed, an
-~.
application for ex-parte decree was not maintainable - Order
of High Court set aside - However, since the order of trial court
is an unreasoned one and evidence led by defendant-
E applicants was not analysed for arriving at a finding as to
whether a case for setting aside ex-parte decree has been
made out or not, in exercise of jurisdiction under Article 142
of the Constitution, order of trial court is also set aside - Matter
remitted to trial court for consideration afresh on merits -
Constitution of India, 1950 - Article 142.
F
Or. 9 r. 13 - Setting aside of ex parte decree - Reasons
)--
to be recorded - Held: An order setting aside an ex parte
decree, being a judicial order should be supported by reasons
- Evidence addu<}ed should be analysed for arriving at the
conclusion ..
G
In a suit for possession, defendants nos. 2 and 5
entered into a compromise with the plaintiff. Since the
suit was decreed ex-parte against defendants nos. 1 and
6, they, on coming to know of the ex-parte dec·ree, filed
-r
'::
an application for ~etting aside the same. The.application -·
H 726

r-
MAHESH YADAV & ANR. v. RAJESHWAR SINGH & ORS. 727

was allowed. The plaintiff challenged the order in revision A
~ before the High Court, which reversed the order of the
trial court. Aggrieved, defendants 1 and 6 filed the instant
appeal.
Allowing the appeal, the Court
HELD:1. There is nothing on record to show that the B
appellants were being represented by the same advocate
who represented the other defendants. If they were
\ represented by different advocates, it is not known as to
whether the order of transfer of the case was brought to

- the notice of the advocate for the appellants. The High c
Court, therefore, may not be correct in holding that only
because a joint written statement was filed, an application
for ex-parte decree was not maintainable. In fact, the
same was held to be maintainable by the trial court. [Para
11] [732-D-E] b
2.1. The proviso appended tor. 13 of Order 9 of the
Code of Civil Procedure, 1908 postulates that when an
ex-parte decree has been passed against some of the
defendants and it is necessary to set aside the entire
decree, the Court is not powerless to do so. When an ex- E
parte decree is passed, the defendant may have more
than one remedies which include filing of an application
under. Order IX Rule 13. The judgment of the High Court,
therefore, is not sustainable. [Para 13 and 14] [733-B-D]
Bhanu Kumar Jain v. Archana Kumar & Anr. (2005) 1 F
sec 787, relied on.
3. The Court expresses its dissatisfaction in the
manner in which the trial court has passed the order
impugned be.fore the High Court. The said order is an
unreasoned one. The evidence adduced on behalf of the G
appellants was not analysed for arriving at a finding as
to whether a case for setting aside an ex- parte decree
.···~·
has been made or n()t. The matter was not considered as
--4 is required in terms of Order IX Rule 13. An order·setting
aside the ex-parte decree being a judicial order should
H

.......
728 SUPREME COURT REPORTS [2008] 17 S.C.R.
'
A have been supported by reasons. The trial court could
not have allowed the said application without following f
the legal principles on the basis whereof such an order
could be passed. This Court, in exercise of jurisdiction
under Article 142 of the Constitution of India, while setting
8 aside the order passed by the High Court also sets aside
the order passed by the trial court. The matter is remitted
to the trial court for consideration afresh on merits. [Para
14] [733-G-H; 734-A-B]
I
Case Law Reference:
c (2005) 1 sec 787 - relied on para 13
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7316 of 2008.
From the Judgment and final Order dated 4.3.2004 of the
High Court of Judicature at Patna in C.R. No. 497 of 2003.
D
Goutam Prasad and Krishnanand Pandeya for the
Appellant.
H.L. Agrawal and Dr. Kailash Chand for the Respondent.
The Judgment of the Court was delivered by
E
S.B. S.INHA, J. 1. Leave granted.
2. Plaintiff in a suit for declaration of title and possession
is before us aggrieved by and dissati~fied with the judgment
and order dated 4.3.2004 passed the High Court of Judicature
F at Patna in Civil Revision No.497 of 2003 whereby and
whereunder an order dated 20.2.2003 passed .by Munsif
Biharshrif, Nalanda in Miscellaneous Case No.19 of 1998
setting aside an ex parte decree, was-reversed.
3. Plaintiff filed the aforementioned suit as Secretary of
G Magadh Raj Jarsandh Akhara, Rajgir. In the said suit six
defendants-were impleaded as parties. It was, inter alia,
contended that although the plaintiff had been in uninterrupted
possession of Plot No.5180, the defendants attempted to take
forcible possession of land measuring 9 decimals.
H In the said suit, the defendants filed a joint written
MAHESH YADAV & ANR. v. RAJESHWAR SINGH & ORS. 729
[S.B. SINHA, J.]
statement. During the pendecy of the said suit, however, the A
~ defendants No.2 and 5 entered into compromise with the
plaintiff. A compromise petition filed by the parties thereto was
accepted. Indisputably, talks for compromise were going on by
and between the plaintiff and defendant Nos.1 and 6; however,
no compromise petition was filed in that behalf. Although B
witnesses examined on behalf of the plaintiff were cross-
examined on behalf of defendant Nos.1 and 6, they did not
\
.... adduce any evidence.
The learned Munsif, Biharsharif decreed the suit, stating :
"After contest this suit is decreed in favour of the plaintiff c
partly on the basis of the compromise petition and partly
after contest. If the defendants have effected any
possession over the disputed land during pendency of the
present suit, the plaintiff will have full right to effect eviction
of the defendants with the assistance of the court on D
payment of proper cost. No order regarding any cost is
being given in the suit."
4. Appellants herein, having come to know of the said ex
parte decree passed against them, filed an application in terms
of Order IX Rule 13 of the Code of Civil Procedure. They E
examined a large number of witnesses in support of their case.
5. We may notice that plaintiffs evidence was closed on
18.5.1995. The learned Judge thereafter was transferred. The
learned District Judge transferred the said case by an
administrative order dated 20.2.1997. There is nothing on F
-1; record to show that the counsel appearing on behalf of the other
defendants were the advocate of the appellants herein also. By
reason of an order dated 20.2.2003, the learned Judge while
considering the case of the appellants that they were kept in
dark about the development of the case due to connivance of
the respondents herein as they had been- informed that the G
compromise had been entered into by some of the parties and
-+ the Presiding Officer has been transferred, noticed :
~ "Four witnesses have been examined on behalf of the
applicant and all of them supported the facts mentioned
H
730 SUPREME COURT REPORTS [2008) 17 S.C.R.

A in the miscellaneous application. Witness No.2 Chinta Devi
is herself opposite party No.2 and has cle_arly. stated in
examination in chief that she is prepared to contest the suit ...
and therefore, the suit should .be revived, on behalf of the
opposite party one witness was examined in support of the
B rejoinder. Witness No.1 is himself opposite party No.1. In
the examination in chief he has stated that the applicant
has filed the miscellaneous application with the intention
of causing harassment to him because the applicant had
information about the suit. Therefore, the· application
should be dismissed."
c
It was directed :
"After hearing both parties and after perusal of records, I
find that the applicant has furnished satisfactory reasons
to show that he had no information about developments
0 in Suit No.67190 and his ·application for revival is fit to be
accepted but will cost.
Therefore the miscellaneous application is accepted
subject to. cost of Rs.200/- under Order 9 Rule 13. And the
ex parte decree in original suit No.67/90 is rescinded."
E 6. A revision application was filed thereagainst.
The High Court passed the impugne<;f judgment only on the
premise that as all the defendants had filed a joint written
statement, there was no occasion for the court to set aside the
ex parte decree stating that if a fraud had been practised upon
F the court, an appropriate proceeding should have been initiated
therefor. It was held : :>--
"If the contention of the defendants 1 and 6 is to the effect
that the decree was obtained by fraud and collusion, then
this matter need be pleaded by facts and circumstances
G so as to take a declaration under Section 44 of the
Evidence Act, 1872. This step was not taken. Suffice it to
... •' .·
say that if there be a fraud it is a criminal act and there i_s )

no limitation if such action is to be taken by a party to the
suit.
,
H Thus, at present the order dated 20 February, 2003 in
MAHESH YADAV & ANR. v. RAJESHWAR SINGH & ORS. 731
[S.8. SINHA, J.]

Miscellaneous Case No.19 of 1998: Mahesh Yadav & A
Ors. V. Rajeshwar Singh & Ors. Permitting setting aside
""". I
an ex parte decree under Order 9 Rule 13 of the Code of
Civil Procedure is set aside."
...,
' 7. Mr. Gautam Prasad, learned counsel appearing on.
behalf of the appellant, would submit that the High Court failed 8
to take into consideration that only because a joint written
statement was filed, the same was binding upon the appellants
although some of them had been won over by the plaintiff.
\.;
8. Mr. H.L. Agrawal, learned senior counsel appearing on
behalf of the respondents, however, supported· the judgment. c
9. Order IX Rule 13 of the Code of Civil Procedure reads
as under:
"13. Setting aside decree ex parte against defendants.-
In any case in which a decree is passed ex parte against
a defendant, he may apply to the Court by which the D
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 E
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 F
be set aside as against all or any of the other defendants
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 G
that the defendant had notice of the date of hearing and
had sufficient time to appear and answer the plaintiffs
~ claim.
Explanation.--Where there has been an appeal against a
decree passed ex parte under this rule, and the appeal has H
732 SUPREME COURT REPORTS (2008] 17 $.C.R.

A been disposed of ori any ground other than the ground that
the appellant has withdrawn the appeal, no application
shall lie under this rule for setting aside the ex parte
decree."
10. Indisputably, two of the defendants had entered into
B compromise with the plaintiff. They have accepted the title of
the plaintiff.
The contents of the written statement filed by the appellants
had not been noticed by the High Court .. The High Court
furthermore failed to consider that according to the appellants
c herein, talks of compromise started by and between the
defendant Nos. 1 and 6 and the plaintiff. They cross-examined
the witnesses of the plaintiff but did not adduce any evidence.
It was on the aforementioned premise alone, the plaintiff was
found to be in possession of the suit land and a decree was
passed.
0
11. There is nothing on record to show that the appellants
herein were being represented by the same learned advocate.
If they were represented by different advocates, it is not known
as to whether the order of transfer of the case was brought to
E the notice of the learned advocate for the appellants. The High
Court, in our opinion, therefore may not be correct in holding
that only because a joint written statement was filed, an
application for ex parte decree was not maintainable. In fact,
the same was held to be. maintainable by the learned Civil
Judge by an order dated 26. 7.2000.
F
12. The proviso appended to Order IX Rule 13 of the Code
of Civil Procedure postulates that when an ex parte decree has
been passed against some of the defendants and it is
necessary to set aside the entire decree, the Court is not
powerless to do so. If.an application for setting aside the ex
G parte decree was maintainable at the instance of the
appellants, w.e fail to understand as to why a separate suit was
required to be filed. When an ex parte decree is passed, the
defendant may have more than one remedies. He may file a
suit contending that the decree was obtained fraudulently. He
H may file an application under Order IX Rule 13 of the Code of
MAHESH YADAV & ANR. v. RAJESHWAR SINGH & ORS. 733
[S.B. SINHA, J.]

Civil Procedure for setting aside the ex parte decree. He may A
prefer an appeal from the ex parte judgment and decree. In a
given case, he may also file a review application.
13. In Bhanu Kumar Jain v. Archana Kumar & Anr.
[(2005) 1 SCC 787) , this Court held :
"26. When an ex parte decree is passed, the defendant B
(apart from filing a review petition and a suit for setting
aside the ex parte decree on the ground of fraud) has two
clear options, one, to file an appeal and another to file an
application for setting aside the order in terms of Order 9
Rule 13 of the Code. He can take recourse to both the C
proceedings simultaneously but in the event the appeal is
dismissed as a result whereof the ex parte decree passed
by the trial court merges with the order passed by the
appellate court, having regard to Explanation appended to
Order 9 Rule 13 of the Code a petition under Order 9 Rule 0
13 would not be maintainable. However, Explanation I
appended to the said provision does not suggest that the
converse is also true."
It was, however, observed :
"28. It is true that although there may not be a statutory bar I;
to avail two remedies simultaneously and an appeal as
also an application for setting aside the ex parte decree
can be filed; one after the other; on the ground of public
policy the right of appeal conferred upon a suitor under a
provision of statute cannot be taken away if the same is F
not in derogation or contrary to any other statutory
provisions."
14. The judgment of the High Court, therefore, in our
opinion is not sustainable.
While, however, saying so, we must express our G
dissatisfaction in the manner in which the learned Civil' Judge
has passed the order impugned before the High Court. The
said order is an unreasoned one. The evidence adduced on
behalf of the appellants were not analysed for arriving at a
finding as to whether a case for setting aside an ex parte H
734 SUPRE~AE COURT REPORTS [2008] 17 S.C.R.

A decree has been made out by the appellants or not. The matter
had not been considered as is required in terms of Order IX
Rule 13 of the Code of Civil Procedure. An order setting aside
the e~ parte decree being a judicial order should have been
supported by reasons. The learned Judge could not have
B allowed the said application without following the legal
principles on the basis whereof such an order could be passed.
We, therefore, in exercise of our jurisdiction under Article
142 of the Constitution of India, while setting aside the order
passed by the High Court also set aside the order passed by
c the learned Civil Judge. The Civil Judge should consider the
matter afresh on merit and pass a reasoned order.
15. Appeal is allowed with the aforementioned directions.
.'
However, in the facts of and circumstances of this case, parties
shall bear their own costs.
D R.P. Appeal allowed.