Order IX Rule 13 CPC: Can A Person Who Is Not Party To Suit File Application To Set Aside Ex-Parte Decree? SC To Examine [Read Order]

The Supreme Court has issued notice in Special Leave Petition in which the issue raised is whether a person who is not a party to the suit cannot move an application to set aside ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure, 1908.

Order IX Rule 13 provides that, in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the 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 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.

In Raj Kumar vs Sardari Lal (2004), the Supreme Court had held that a lis pendens transferee, though not brought on record under Order 22 Rule 10 of the CPC, is entitled to move an application under Order 9 rule 13 to set aside a decree passed against his transferor-the defendant in the suit.

But in 2013, in Ram Prakash Agarwal & Anr vs. Gopi Krishan, it was held that an application under Order IX Rule 13 CPC cannot be filed by a person who was not initially a party to the proceedings.

The present SLP arose out of a Punjab and Haryana High Court judgment, which followed Raj Kumar (Supra) and upheld a Trial Court order allowing an application to set aside ex-parte decree filed by transferee pendente lite. The High Court opined that in Raj Kumar, the Apex Court was dealing with the case of transferee pendente lite and it was held that the transferee pendente lite having stepped into the shoes of the original defendant is entitled to file an application under Order 9 Rule 13 CPC. The High Court chose to follow Raj Kumar, opining that it was near to the facts of the case and also observed that in Ram Parkash Aggarwal (Supra), the Supreme Court was dealing with the proceedings under Section 18 of the Land Acquisition Act, 1894 in which the application was filed under Order 9 Rule 13 CPC.  

The bench comprising Justice DY Chandrachud and Justice Aniruddha Bose, noticing the conflict, ordered status quo and posted the matter after eight weeks.

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