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

Because the defendant here never received summons, the natural first question is whether the Code has a purpose-built remedy for exactly that defect, and Order IX Rule 13 supplies the answer.

1. Review, separate suit, or appeal: each of these is either a narrower remedy meant for different grounds, such as an error apparent on the record for review, or a more roundabout and generally unnecessary path where a direct statutory remedy already exists, so none of them is the primary, tailored response to non-service of summons.
2. Application to set aside the ex-parte decree under Order IX Rule 13: this rule specifically empowers the same court that passed the decree to set it aside on the defendant's application, where summons was not duly served or the defendant was kept away by sufficient cause, exactly the situation described in the question.

Since Order IX Rule 13 was designed precisely for a defendant who never had a fair opportunity to contest because of defective service, applying under that rule to set aside the decree is the correct remedy, not the other more general or narrower options.

Answer 2

An appeal and an application under Order IX Rule 13 can look similar at first glance, since both challenge the correctness of a decree, but they are built for different situations, and comparing them directly shows why the rule 13 route fits here.

1. Appeal against the decree: an appeal generally reviews whether the decree was rightly decided on the merits by the trial court, presupposing that the party had a fair opportunity to place its case before that court. It is not specifically designed to address a situation where the defendant was never served and therefore never had that opportunity at all.
2. Application under Order IX Rule 13: this remedy exists precisely for defendants who did not appear because they were not properly served, or were kept away for sufficient cause, and it allows the very same court to undo the ex-parte decree once that defect is shown. Because the defect here is a failure of service rather than an error in deciding the merits, this is the remedy that matches the facts.
3. Review and a fresh separate suit: review addresses a different category of defect, typically an error apparent on the record or newly discovered evidence, while a fresh suit is generally unnecessary and often barred once a specific statutory remedy for the decree itself is available.

Comparing the appeal route against the Rule 13 route shows that only the latter is designed to correct a decree that was passed without the defendant ever being served, making it the appropriate remedy.

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