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

Hint:

Order IX Rule 13 is your remedy for an ex-parte decree! Lack of service is a fundamental violation of natural justice, making setting aside the decree the standard procedural recourse.

Answer 1

The Correct Option is B

This question can be tested in two parts: pinning down exactly what went wrong, and then matching that defect to the remedy the Code actually provides for it.

Test 1, the defect:
The defendant was not served with summons and so had no real opportunity to contest the suit, which is the specific defect Order IX, Rule 13 is written to address.

Test 2, the matching remedy:
Rule 13 lets such a defendant apply to the very court that passed the decree, asking it to be set aside on the ground of non-service or sufficient cause for non-appearance. Appeal, review, and a fresh separate suit are all remedies designed for different situations, and none of them are the direct, targeted route Rule 13 supplies for non-service specifically.

Conclusion:
Since the defect here is precisely non-service, the remedy that matches is an application to set aside the ex-parte decree.

\[ \boxed{\text{By applying for setting aside the ex-parte decree.}} \]

Answer 2

Order IX, Rule 13 exists to protect a basic principle of fairness, that no one should be bound by a decree in a case they never had a real chance to defend. Testing each option against that fairness purpose shows which remedy actually serves it best.

1. Only through an appeal against decree: An appeal reviews whether the decree was correctly decided on its merits, but it does not squarely address the more basic unfairness of never having been given notice at all.
2. By applying for setting aside the ex-parte decree: Letting the very court that passed the decree revisit it once it learns the defendant was never properly served serves the fairness purpose directly and efficiently, restoring the defendant's chance to be heard without forcing a fresh round of litigation.
3. Only through review before the same court: Review exists to fix errors visible on the record itself, not to address a defendant's total absence from the proceedings due to lack of notice.
4. Only by filing a separate suit: Requiring an entirely new suit would be an unnecessarily roundabout way of fixing a problem that the same court can resolve directly.

Only setting aside the ex-parte decree directly cures the unfairness of a defendant never having been served, which is exactly the purpose Order IX, Rule 13 exists to serve.

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