Does a civil court have the inherent power to set aside an ex parte decree?
Question: Does a civil court have inherent power to set aside an ex parte decree? [Bihar C.J. 1991 U.P.C.J. 1987]
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The main determination of question is “Has a Court power, apart from the provisions of Rule 13, Order IX, C.P.C. to set aside an exparte decree passed by itself”? Section 151 says,
“Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”
Order IX, Rule 13, provides a special summary remedy for a particular class of cases mentioned therein, i. e. those in which summons was not duly served on the defendant or in which he was prevented for any sufficient cause from appearing when the suit was called on for hearing; and the jurisdiction is limited to the Court by which the decree was passed. To hold that such a remedy can be extended to cases other than those mentioned would be going against the clear intention of the legislature and cannot be brought within the scope of any inherent power recognised by Section 151 or the rulings on the subject.
For a defendant against whom a decree exparte has been passed, the following remedies are open:
- He can bring a suit to set aside the decree if there has been any fraud in the obtaining of it
- He can prefer an appeal against the decree itself; there can be no doubt that the powers of the Appellate Court are large enough to enable it to set aside the ex parte decree if there has been a miscarriage of justice. The Appellate Court is not confined to the grounds mentioned in Order IX, Rule 13 in dealing with the matter.
- The aggrieved party can file an application for review; and the grounds for such an application would be wider than those covered by Rule 13.
- He can also file an application as provided by Rule 13 to set aside the ex parte decree.
Thus, the legislature has provided a mode by which exparte decrees can be set aside so there is no necessity for invoking the principle of the remedy ex debito justitiae, because in all conceivable cases, the party aggrieved can obtain justice by resorting to the proper procedure. [Neelaveni v. Narayana Reddi, (AIR 1920 Mad 640)]
Courts possess inherent power is recognized in Section 151 Civil Procedure Code. But the exercise of the power in the particular form in which it is invoked must be justified in each case in the manner authorized by authority. To justify it directly by reference to a previous course of actual instances of its exercise with or without the endorsement of appellate tribunals will seldom be possible when it is disputed, and generally, the legitimacy of its exercise must be tested with reference to the principles which authority has prescribed.
Those principles have been laid down in judgments and as held by Woodroffe and Mookerjee, JJ., in Hukum Chand Boid v. Kamalanand Singh (1905) I.L.R 33 Cal. 927 that the inherent power shall be exercised, not capriciously, or arbitrarily but ex debito justitiae on sound general principles and not in conflict with the intentions of the legislature.
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