Can a defendant validly invoke Order IX Rule 13 CPC to set aside an ex parte decree in a summary suit filed under Order XXXVII CPC?

 

This is a nuanced procedural law question involving summary suits (Order XXXVII CPC) and ex parte decrees, specifically whether Order IX Rule 13 CPC applies or if another provision governs such applications.

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🔍 Issue:

Can a defendant validly invoke Order IX Rule 13 CPC to set aside an ex parte decree in a summary suit filed under Order XXXVII CPC?

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⚖️ Legal Position:

❌ Order IX Rule 13 CPC — Not Applicable in Summary Suits

• Order IX Rule 13 CPC applies to regular civil suits where the defendant fails to appear and the court proceeds ex parte.

• However, in summary suits under Order XXXVII, the procedure is special and distinct. Here, if the defendant does not enter appearance or fails to apply for leave to defend, the plaintiff becomes entitled to an ex parte decree by procedure of law.

• Therefore, Order IX Rule 13 is not the correct provision in such suits.

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✅ Correct Provision: Order XXXVII Rule 4 CPC

Order XXXVII Rule 4 CPC specifically provides a remedy after a decree is passed in a summary suit.

📘 Order XXXVII Rule 4 CPC – Text

"After decree the court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such terms as the court thinks fit."

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📌 Key Elements of Order XXXVII Rule 4 CPC:

1. Applies only after decree is passed in a summary suit.

2. Defendant must show "special circumstances" justifying setting aside of the decree.

3. The court has wide discretion and can:

   • Set aside the decree,

   • Stay execution,

   • Grant leave to defend.

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🔄 Can the Court suo motu Treat the Application under the Correct Provision?

✅ Yes.

Courts have repeatedly held that mere mislabeling of a provision is not fatal. If the substance of the application discloses valid grounds under the correct provision (here, Order XXXVII Rule 4), the court can:

• Ignore the incorrect citation (Order IX Rule 13), and

• Treat the application as one under Order XXXVII Rule 4.

⚖️ Case Law Support:

🔹 State Bank of Saurashtra v. Ashit Shipping Services Pvt. Ltd., (2002) 4 SCC 736

The Supreme Court held that courts should not reject applications solely on the ground of wrong provision being mentioned if the substance and relief sought fall under a different but applicable provision.

🔹 G. P. Srivastava v. R. K. Raizada, (2000) 3 SCC 54

Even in applications under special provisions, substantial justice should prevail over technicalities.

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📝 Conclusion:

• The defendant cannot validly invoke Order IX Rule 13 CPC to set aside an ex parte decree in a summary suit.

• The correct remedy lies under Order XXXVII Rule 4 CPC.

• The court may suo motu treat the application under the appropriate provision if the substance of the application justifies relief.

• The focus of the court should be on doing complete justice, and not on technical defects in procedure.