Ex Parte Orders and How to Set Them Aside (Order 9 CPC) (2026)
What happens under Order 9 of the Code of Civil Procedure when a party does not appear: when a suit proceeds ex parte, when a plaint is dismissed for the plaintiff's absence, and how a defendant can have an ex parte decree set aside under Rule 13. Last verified October 2026.
Explainer · Civil Procedure · CPC
Order 9 of the Code of Civil Procedure, 1908 (CPC) deals with what happens when a party does not appear in court. If the defendant stays away although properly served, the court can hear the suit ex parte and pass an ex parte decree. If the plaintiff stays away, the suit can be dismissed for default. The defendant's key remedy is Order 9 Rule 13, which lets him ask the court to set aside an ex parte decree on two grounds: that the summons was not duly served, or that he was prevented by sufficient cause from appearing. This explainer sets out when a suit goes ex parte, how a decree is set aside, the limitation period, and the practical points that decide these applications. Last verified October 2026.
- Ex parte decree: under Order 9 Rule 6, if the defendant is absent though duly served, the court may hear the suit ex parte and pass a decree.
- Setting aside: under Order 9 Rule 13, the decree is set aside if the summons was not duly served, or the defendant was prevented by sufficient cause from appearing.
- Limitation: 30 days under Article 123 of the Limitation Act, 1963, from the date of the decree, or from knowledge where summons was not duly served.
- Plaintiff absent: the suit can be dismissed for default, and the plaintiff may apply to restore it on sufficient cause.
01The problem it addresses
A suit cannot stall simply because one side does not turn up. Order 9 gives the court rules for proceeding in the absence of a party, so that litigation moves on. But it also protects a party who had a genuine reason for not appearing, or who was never properly told about the case.
The result is a two-sided scheme. On one side, the court can proceed ex parte and decide the suit. On the other side, the absent party has a clear route back, if he acts quickly and shows a good reason. Getting the balance right is what Order 9 is about.
02When a suit proceeds ex parte
Where the summons has been duly served, and on the hearing day the plaintiff appears but the defendant does not, the court may, under Order 9 Rule 6, hear the suit ex parte. It records that the defendant is absent and proceeds to decide the suit on the plaintiff's evidence.
An ex parte decree is still a decree on the merits. It is not a punishment for absence, and the plaintiff must still prove the claim.
An ex parte decree is a decree passed in the absence of the defendant. It is not automatic. The plaintiff still has to prove the case. The important condition is proper service: the court can proceed ex parte only if it is satisfied the summons was duly served. If service was defective, the whole basis for proceeding ex parte is open to challenge.
03When the plaintiff is absent
Order 9 also deals with the plaintiff's absence. Where neither party appears, the court may dismiss the suit. Where the defendant appears but the plaintiff does not, the suit is liable to be dismissed for the plaintiff's default.
- Dismissal for default: the suit is dismissed because the plaintiff did not appear, not on the merits.
- Restoration: the plaintiff may apply to set aside the dismissal and restore the suit, by showing sufficient cause for the absence.
There is also a stage before decree. If the defendant was absent on an earlier date but the matter has not yet been decided, the court has power to set aside the order to proceed ex parte and let the defendant join, on terms, before the final decree is passed.
04Setting aside an ex parte decree (Rule 13)
The main remedy against an ex parte decree is Order 9 Rule 13. The defendant applies to the court that passed the decree and must establish one of two grounds:
- Summons not duly served: if the court is satisfied that the summons was not duly served, it must set aside the decree. Proper service is the foundation of an ex parte decree, so a failure of service is a strong ground.
- Prevented by sufficient cause: if the defendant was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court may set aside the decree. Illness, a missed or wrong date, and non-receipt of notice are common examples, judged on the facts.
Relief can be on terms
When it sets aside an ex parte decree, the court can impose conditions, such as costs or a deposit. An order setting aside the decree need not be wholly unconditional. The aim is to let the defence be heard while compensating the plaintiff for the delay.
05Limitation and practical points
An application under Order 9 Rule 13 must be filed within 30 days under Article 123 of the Limitation Act, 1963. The period runs from the date of the decree. But where the summons was not duly served, the period runs from the date on which the defendant had knowledge of the decree.
Two practical points follow:
- Service facts are central: because both the ground and the start of limitation turn on service, the defendant should set out clearly how and when he learnt of the decree, and why service was bad.
- Act quickly: a late application faces a strong limitation challenge, and whether delay can be condoned has been treated differently in different cases, so the safest course is to file within 30 days of knowledge.
An appeal against the ex parte decree is also possible, and a party may pursue both routes. Because the service and sufficient-cause findings are fact-heavy, early access to the order sheet and the service record matters a great deal.
06Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
Ex parte decrees and Rule 13 applications turn on the record: when the summons went out, what the order sheet says, and when the defendant first learnt of the decree. Claw lets you search 30 crore+ judgments by party, by advocate or by the Order 9 point in issue, and shows how courts have treated due service and sufficient cause in under 5 seconds. Just as useful, it tracks the cases, orders and hearings of your own matters across 9,102 courts, benches and forums, so an ex parte order shows up on your tracked matter in time to move within the 30 days.
Claw does not use the case papers you add to train its AI models. Open a free Claw account to keep your matters in view for an adverse order and research the service rulings behind a Rule 13 application. To search the wider body of law, see case search across Indian courts.
07Sources and further reading
- India Code (Code of Civil Procedure, 1908): indiacode.nic.in
- India Code (Limitation Act, 1963): indiacode.nic.in
- Indian Kanoon (judgments on Order 9 Rule 13): indiankanoon.org
- Claw: clawlaw.in
This explainer is general information, not legal advice. The law changes through amendments and judgments, so check the current text and take advice from counsel before you act.
08Frequently asked questions
What is an ex parte decree under Order 9 CPC?
It is a decree passed in the absence of the defendant. Under Order 9 Rule 6, where the summons was duly served and the defendant does not appear, the court may hear the suit ex parte and decide it on the plaintiff's evidence. The plaintiff must still prove the claim.
How do you set aside an ex parte decree?
By an application under Order 9 Rule 13 to the court that passed the decree. The defendant must show either that the summons was not duly served, or that he was prevented by sufficient cause from appearing. The court may set aside the decree on just terms, such as costs.
What is the limitation period for Order 9 Rule 13?
30 days under Article 123 of the Limitation Act, 1963. The period runs from the date of the decree, but where the summons was not duly served it runs from the date the defendant had knowledge of the decree.
What happens if the plaintiff does not appear?
The suit can be dismissed for default of the plaintiff's appearance. This is not a decision on the merits. The plaintiff may apply to set aside the dismissal and restore the suit by showing sufficient cause for the absence.
Can the defendant also appeal an ex parte decree?
Yes. A defendant may file an appeal against the ex parte decree, and may also apply under Order 9 Rule 13 to set it aside. Which route to take, or whether to pursue both, depends on the facts and advice from counsel.
Where can I find judgments on Order 9 and ex parte decrees?
Claw searches 30 crore+ judgments on Order 9 by party or advocate name and follows the hearings and orders of a live matter across 9,102 courts, benches and forums, with results in under 5 seconds. It researches and tracks the case but does not give legal advice.