Question

Under the provisions of the Code of Civil Procedure, 1908, where a decree is passed against multiple defendants, one of whom was not served with summons and had no opportunity to contest, such a defendant may seek relief:

• A. Only through an appeal against decree.
• B. By applying for setting aside the ex-parte decree.
• C. Only through review before the same court.
• D. Only by filing a separate suit.

Hint:

Order IX Rule 13 is your remedy for an ex-parte decree! Lack of service is a fundamental violation of natural justice, making setting aside the decree the standard procedural recourse.

Answer 1

The Correct Option is B

Step 1: Understanding the Concept:
When a defendant is not served with a summons, the trial court lacks jurisdiction over them, making any resulting decree "ex-parte" and liable to be set aside.

Step 2: Detailed Explanation:
- Order IX, Rule 13 of the CPC specifically provides the remedy for a defendant against whom an ex-parte decree has been passed.
- A defendant who proves that summons were not duly served or that they were prevented by sufficient cause from appearing when the suit was called on for hearing may apply to the court by which the decree was passed for an order to set it aside.

Step 3: Final Answer:
The appropriate remedy is to apply to set aside the ex-parte decree. Option (B) is correct.

Answer 2

When a decree is passed against a defendant who was never served with summons and never got a chance to contest, the CPC gives a specific remedy for that situation. The question asks what that remedy is, and each option needs to be checked against the actual procedure available.

1. Only through an appeal against decree: An appeal is available in general, but it is not the exclusive or most direct remedy for a defendant who was simply never served. The Code specifically provides a more targeted route for exactly this situation.
2. By applying for setting aside the ex-parte decree: Order IX, Rule 13 lets a defendant against whom an ex-parte decree has been passed apply to the same court to have it set aside, on showing that summons was not duly served or that sufficient cause prevented appearance. Since the defendant here was never served at all, this is exactly the remedy that fits.
3. Only through review before the same court: Review is meant for correcting an error apparent on the face of the record or for cases where new, important evidence has surfaced, not for a decree passed without service of summons.
4. Only by filing a separate suit: The Code does not require a defendant in this position to start an entirely new suit, since Order IX, Rule 13 already provides a direct application within the same proceeding.

Only an application to set aside the ex-parte decree, grounded in the lack of service, matches the specific remedy the Code provides for this situation.

Therefore, the correct answer is By applying for setting aside the ex-parte decree.