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

Hint:

Remember the formula: No service of summons = Order IX Rule 13. This is one of the most common CPC questions asked in competitive examinations.

Answer 1

The Correct Option is C

Concept: One of the fundamental principles of natural justice is that no person should be condemned unheard (Audi Alteram Partem). The Code of Civil Procedure ensures that every defendant receives proper notice of the proceedings and is given an opportunity to present a defence. Where a decree is passed without service of summons, the affected defendant is entitled to seek relief under Order IX Rule 13 CPC.

Step 1: Importance of service of summons.
Service of summons informs the defendant about:

• The institution of the suit.

• The claims made against him.

• The date on which he must appear before the court.
Without proper service, the defendant cannot effectively defend the case.

Step 2: Remedy available under Order IX Rule 13 CPC.
Order IX Rule 13 provides that where an ex-parte decree has been passed against a defendant, he may apply to the same court for setting aside the decree if:

• Summons were not duly served; or

• He was prevented by sufficient cause from appearing.
Non-service of summons is one of the strongest grounds for setting aside an ex-parte decree.

Step 3: Why other options are incorrect.

• Review is not the primary remedy.

Incorrect.

• Separate suit is generally barred when a specific remedy exists.

Incorrect.

• Appeal is possible in some cases, but Order IX Rule 13 provides the direct remedy.

Incorrect.

• Application to set aside ex-parte decree is the proper statutory remedy.

Correct.

An ex-parte decree obtained without proper service of summons can be set aside under Order IX Rule 13 CPC.

Answer 2

Where a decree has been passed against a defendant who was never served with summons and had no chance to contest, the Code of Civil Procedure, 1908 gives that defendant a direct, statute-backed remedy, and each option can be tested against the actual remedy Order IX Rule 13 provides.

1. Only through review before the same court: review is a distinct remedy available on narrower grounds, such as discovery of new evidence or an error apparent on the face of the record, and is not the remedy specifically designed for a defendant who was never served with summons in the first place.
2. Only by filing a separate suit: where a specific statutory remedy such as an application under Order IX Rule 13 is available to challenge the decree itself, the law does not require or generally permit the defendant to start an entirely fresh suit as the sole path to relief.
3. By applying for setting aside the ex-parte decree: Order IX Rule 13 allows a defendant against whom an ex-parte decree has been passed to apply to the same court to set it aside upon showing either that summons was not duly served or that he was prevented by sufficient cause from appearing. Non-service of summons is one of the clearest and strongest grounds recognised under this rule, matching the facts here precisely.
4. Only through an appeal against decree: while an appeal may in principle be available in appropriate cases, it is not the remedy specifically tailored to a defect in service of summons, and the direct, purpose-built remedy for that defect is the application under Order IX Rule 13, not an appeal.

Because Order IX Rule 13 exists precisely to let an unserved defendant challenge an ex-parte decree before the same court that passed it, applying to set aside that decree is the appropriate and specific remedy here.

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