Whether a Non-Party to the Suit can get the Ex-Parte Decree Set Aside

Order 9[i] of the Code of Civil Procedure (CPC) deals with the appearance of parties and the consequences of non-appearance on the first hearing. Order 17, Rule 2[ii], lays down that the non-appearance of a party on an adjourned hearing may lead to similar consequences.

An ex-parte decree is a decree passed in the absence of the defendant (in absenti). Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the summons is duly served, the court may hear the suit ex-parte and pass a decree against him. Such a decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi-parte decree and it has all the force of a valid decree.[iii]

Non-Party’s Right to get the ex-parte decree set aside

It is only when a decree has been passed ex- parte that an application is maintainable under Order 9 Rule 13[iv], and a decree can be said to have been passed ex parte only if the defendant does not appear when the suit is called on for hearing.[v]

In Pawan and Ors vs Mamta Gupta and Ors[vi], the question before the Hon’ble Punjab and Haryana High Court was that whether a person to whom property was transferred by defendant during the pendency of suit can file an application to set aside an ex-parte decree passed against the defendant. The court 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.

In Raj Kumar vs Sardari Lal[vii] the applicant non-party filed an application under Order 9 Rule 13 of the CPC seeking setting aside of the decree and also made a prayer under Order 22 Rule 10 of the CPC for being brought on record. The applicant in the present case was a transferee pendent lite who purchased the suit property during the pendency of the suit from the defendant.

The Hon’ble Supreme Court firstly elaborated upon the status of transferee pendente lite and doctrine of lis pendens and held that the doctrine of Lis pendens expressed in the maxim ‘at lite Pender nihil innovetur’ (during a litigation nothing new should be introduced) has been statutorily incorporated in Section 52 of the Transfer of Property Act 1882[viii]. A defendant cannot, by alienating property during the pendency of litigation, venture into depriving the successful plaintiff of the fruits of the decree. The transferee pendente lite is treated in the eye of law as a representative-in-interest of the judgment-debtor and held bound by the decree passed against the judgment-debtor though neither the defendant has chosen to bring the transferee on record by apprising his opponent and the Court of the transfer made by him nor the transferee has chosen to come on record by taking recourse to Order 22 Rule 10 of the CPC[ix]. In case of an assignment creation or devolution of any interest during the pendency of any suit, Order 22 Rule 10 of the CPC confers a discretion on the Court hearing the suit to grant leave to the person upon whom such interest has come to vest or devolve to be brought on record. Bringing of a lis pendens transferee on record is not as of right but in the discretion of the Court. Though not brought on record the lis pendens transferee remains bound by the decree.

The court further took the help of Section 146 CPC as the transferee pendente lite would be a representative-in interest of the defendant judgment debtor. Section 146 of the Code of Civil Procedure, 1908 provides that:

“146. Proceedings by or against representatives- Save as otherwise provided by this Court or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or application may be made by or against any person claiming under him.”

A Lis pendens transferee from the defendant, though not arrayed as a party in the suit, is still a person claiming under the defendant. The same principle of law is recognized in a different perspective by Rule 16 of Order 21 of the CPC[x] which speaks of transfer or assignment inter vivos or by operation of law made by the plaintiff-decree-holder. The transferee may apply for execution of the decree of the Court which passed it and the decree will be available for execution in the same manner and subject to the same conditions as if the application were made by the decree-holder. It is interesting to note that a provision like Section 146 of the CPC was not there in the preceding Code and was for the first time incorporated in the CPC of 1908. In Order 21 Rule 16, an explanation was inserted through amendment made by Act No. 104 of 1976 w.e.f. 1.2.1977 whereby the operation of Section 146 of CPC was allowed to prevail independent of Order 21 Rule 16 CPC.

So a decree passed against the defendant is available for execution against the transferee or assignee of the defendant/judgment-debtor and it does not make any difference whether such transfer or assignment has taken place after the passing of the decree or before the passing of the decree without notice or leave of the Court.

In Smt. Saila Bala Dassi vs Sm. Nirmala Sundari Dassi and Anr.[xi] where the question was whether a transferee of property from defendant during the pendency of the suit can be brought on record at the stage of appeal. The Court held that an appeal is a proceeding for the purpose of Section 146 CPC and further the expression ‘claiming under’ is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code. A person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to Section 146 of the CPC, which provision being a beneficent provision should be construed liberally so as to advance justice and not in a restricted or technical sense. Their Lordships held that being a purchaser pendente lite, a person will be bound by the proceedings taken by the successful party in execution of decree and justice requires that such purchaser should be given an opportunity to protect his rights.

Jugalkishore Saraf vs M/s. Raw Cotton Co. Ltd.,[xii], was a case where during the pendency of a suit for recovery of a debt from the defendant the plaintiff in that suit transferred to a third person all the book and other debts. The Court held that the position of the transferor vis-a-vis the transferee is nothing more than that of a benamidar for the latter and when the decree is passed for the recovery of that debt it is the latter who is the real owner of the decree. When the transferee becomes the owner of the decree immediately on its passing, he must, in relation to the decree, be also regarded as person claiming under the transferor. The transferee is entitled under Section 146 to make an application for execution which the original decree-holder could do. The executing Court can apply its mind to the simple equitable principle which operates to transfer the beneficent interest in the after acquired decree under Section 146. As the assignee from the plaintiff of the debt which was the entire subject matter of the suit, the transferee/assignee was entitled to be brought on record under Order 22 Rule 10 and must, therefore, be also regarded as a representative of the plaintiff within the meaning of Section 47 of the CPC.

Going by the same reasoning a non-party to whom suit property or some other rights related to the suit were transferred by the defendant during the pendency the suit is entitled to file an application to set aside the ex-parte decree.

In Man Singh And Anr. vs Sanghi Dal Chand[xiii], it was stated that the words “against a defendant” do not necessarily imply that the only defendant against whom relief has been in terms granted by the decree can apply for an order to set it aside. They are comprehensive enough to include a case in which the decree adversely affects the rights of a person who is not a party to the suit.

Property transferred or rights obtained in suit property after passing of Ex-Parte Decree

In Santosh Chopra vs Teja Singh Sardul Singh[xiv], where the question before Hon’ble Delhi High Court was that whether a person to whom property was transferred after passing of the decree and who was not a party to the suit has locus to file an application under Order 9 Rule 13 for setting aside ex-parte decree. Court said that on the very reading of the Rule it is clear that it is only the defendant in an action who can move an application under this provision of law. A person who is not a party, though he may be interested in the suit, is not entitled to apply under this Rule. Even if a person who is formally a party but against whom nothing is said in the operative portion of the decree or who has been expressly exempted from a decree cannot apply under this Rule to set aside an ex parte decree. Order 22, Rule 10 contemplates a situation arising in the cases of assignment, creation and devolution of interest during pendency of a suit other than those referred to in earlier rules of the same order. It is based on the principle that trial of a suit cannot be brought to an end merely on account of interest of a party, subject matter of a suit, is devolved upon another, during its pendency. Such a suit may be continued, with the leave of the court, by or against the person upon whom such interest has devolved. Since in the present case subject matter of the suit was sold after the decree and not during the pendency of the suit, Order 22 Rule 10 is not applicable in this situation. Since the no-party purchased the property after passing of the ex-parte decree it has to first file an appeal as an appeal can be filed by an aggrieved person who was not a party to the suit and then the non-party has to apply under Order I Rule 10 for adding it as a party to the suit. So the non-party can’t get the ex-parte decree set aside at this stage.

Similarly Calcutta High Court in Susil Chandra Guha and another v. Gouri Sundari Devi and others[xv]. In that case it was held that the puisne mortgagee not a party to a suit cannot be allowed to apply for setting aside the ex parte decree either under Order 9 Rule 13 or under Section 146 Civil Procedure Code.

The above two cases find support from the view of Hon’ble Supreme Court’s finding in Raj Kumar vs Sardari Lal, where 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. So the focus is on lis pendens transferee and the transfer done after passing of the decree and before filing of appeal can’t said to be a lis pendens transfer.


So a non-party apart from the defendant also has the right to get the ex-parte decree set aside provided that the rights litigated in the suit or the suit property to such a non-party/assignee/transferee were transferred during the pendency of the suit. So in such cases the procedure will be like this:

  • Firstly, the non-party will apply under Order 9 Rule 13 for setting aside ex-parte decree on the ground that he is the one who is actually getting affected due to such decree and its execution will be brought against him.
  • Court if satisfied with the reasoning of such a non-party will set aside the ex-parte decree.
  • The effect of setting aside of ex-parte decree will be that the suit will be restored to the position wherefrom the ex-parte proceedings were initiated against the defendant.
  • Secondly, once the ex-parte decree is set aside and the suit is restored, such non-party will file an application under Order I Rule 10(2) for being made a party to the suit.
  • Court if satisfied that such a non-party is a necessary or proper party (chances are high because already this party got the ex-parte decree set aside) will add it as a party to the suit in the form of defendant.
  • Then the court will adjudicate the whole dispute taking into consideration the averments made by this new defendant.

[i] https://lawrato.com/indian-kanoon/cpc/order-9

[ii] https://lawrato.com/indian-kanoon/cpc/order-17

[iii] Chandu Lal v Khalilur Rahaman, AIR 1950 PC 17

[iv] https://lawrato.com/indian-kanoon/cpc/order-9

[v] Mulla, The Code of Civil Procedure, Vol.2 (Lexis Nexis, New Delhi, 17th edn., 2007), p. 581 


[vii] Appeal (civil)  400 of 2004, 2004 (1) SCR 838

[viii] https://indiankanoon.org/doc/1634925/

[ix] https://lawrato.com/indian-kanoon/cpc/order-22

[x] https://lawrato.com/indian-kanoon/cpc/order-21

[xi] [1958] SCR 1287

[xii] [1955] I SCR 1369

[xiii] AIR 1934 All 163, 147 Ind Cas 1186

[xiv] AIR 1977 Delhi 110, ILR 1977 Delhi 216

[xv] (AIR 1926 Calcutta 1015)


Harshit Sharma

Harshit is a Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (Ph.D.) at NLU Jodhpur. He can be reached at harshitsharmanluj@gmail.com.

One response to “Whether a Non-Party to the Suit can get the Ex-Parte Decree Set Aside”

  1. Wonderful post. your post is very well written and unique.


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