People generally learn about an ex-parte decree in one of three ways: a bailiff arrives to execute it, the bank account is attached, or the buyer of a property discovers it during a title search. By then the suit has been decided, sometimes years earlier, without the defendant ever having said a word. The position is recoverable, but only if you move on the right application, in the right court, within the right period.
What an ex-parte decree is
Where a defendant does not appear, the court may proceed ex parte and decide the suit on the plaintiff's evidence alone. Under the Code of Civil Procedure, 1908, that decree is fully valid and fully executable. It is not a provisional order that lapses. It stands until it is set aside.
The main remedy: Order IX Rule 13
An application under Order IX Rule 13 CPC is made to the same court that passed the decree, and it succeeds on either of two grounds:
- The summons was not duly served. Not that you did not receive it — that service was not effected in the manner the Code requires. This is the stronger ground and the one that most often succeeds, because service in practice is frequently defective: the process server's report is bare, the address is wrong, the substituted service was ordered without the required foundation, or the person served was not authorised to accept it.
- You were prevented by sufficient cause from appearing. Illness with medical evidence, being out of the country, an advocate who failed to appear or failed to inform you, a genuine confusion of dates. Courts approach this generously where the defendant has a real defence, but generosity does not extend to a defendant who knew and chose not to attend.
The thirty days — and where they start
The limitation for an application to set aside an ex-parte decree is thirty days under the Limitation Act, 1908. The critical detail is where the period begins: from the date of the decree, or — where the summons was not duly served — from the date the applicant had knowledge of the decree.
That is why a decree passed four years ago can still be attacked. But knowledge must be pleaded honestly and specifically: state the date you learned of the decree and how, and support it — the date of the execution notice, the bailiff's visit, the day the search revealed it. A vague “recently came to know” is where these applications are most often lost. Where the period has run, apply for condonation under section 5 of the Limitation Act and explain every day of the delay, not the delay as a whole.
The other routes, and when each is right
- Order IX Rule 7 — if the court has proceeded ex parte but has not yet decreed, you can appear at the adjourned hearing, show good cause for your earlier absence, and be let back in. This is far easier than setting aside a decree. Anyone who discovers proceedings at this stage should move immediately.
- Appeal under section 96 CPC — an ex-parte decree is appealable on the merits. Useful where you want to attack the decree itself rather than explain your absence. An appeal and an Order IX Rule 13 application can generally both be pursued, but not without care: how one affects the other is a matter for advice on your facts.
- Section 12(2) CPC — an application to the court that passed the decree where it was obtained by fraud or misrepresentation, or where the court lacked jurisdiction. The classic case is deliberately false service: the plaintiff gave an address he knew you had left, or filed a false report of service. This is a powerful remedy and a serious allegation; it requires particulars of the fraud, not adjectives.
- Review under section 114 and Order XLVII — narrow, for an error apparent on the face of the record or newly discovered evidence.
- Objections in execution under section 47 — where the decree is a nullity, for example because it was passed against a dead person or by a court with no jurisdiction at all.
What to file, and what to file with it
- Obtain certified copies of the plaint, the decree, the judgment, the order sheet, and above all the process server's report and the service record. The service record is the evidence on which the whole application usually turns.
- Plead the facts precisely: when you learned of the decree, how, why you did not appear, and what is wrong with the service.
- Show a defence. Courts do not set aside decrees so that the same result can be reached again. Set out, briefly, the defence you would have raised had you appeared — payment made, the contract never signed, the property never sold, limitation, no jurisdiction.
- Apply to stay execution at the same time. A set-aside application does not automatically stop execution. Your property can be sold while your application is pending. File the stay application together with the main one, on the same day.
- Support the application with an affidavit and the documentary proof of your account — the medical certificate, the passport entry and exit stamps, the tenancy that shows you had moved.
What happens if it succeeds — and what it will cost
If the court is satisfied, it sets aside the decree and restores the suit to its original position. You are back where you would have been if you had appeared: the suit is tried, and you defend it on the merits. Courts frequently impose costs as a condition of restoration, and sometimes require security. Pay them without argument — costs are the cheapest part of this exercise.
Two practical warnings. First, do not deal with the property or the money that is the subject of the decree while your application is pending; it undermines everything you are saying about being kept in the dark. Second, once restored, appear. A second ex-parte decree in the same suit is very much harder to shift, and the court's patience will have been spent.
This article describes general civil procedure in Pakistan and is not advice on any particular decree. Which remedy fits your case — Order IX Rule 13, an appeal, section 12(2), or objections in execution — depends on how the decree was obtained, when you learned of it, and what stage execution has reached. Get a certified copy of the record and consult an advocate at once; the limitation period is short.