In Brief
In a mortgage redemption suit, the plaintiff appeared and led evidence while the defendant was proceeded ex parte without leading any evidence. The trial court passed a preliminary decree, and the defendant later sought to set it aside under the Civil Procedure Code, Order 9 Rule 13. The question was whether the decree was an ex parte decree eligible for reconsideration. The Supreme Court held that when a defendant fails to appear and does not lead evidence, the decree is indeed an ex parte decree under Order 9 Rule 6(a) that may be set aside on sufficient grounds. The Explanation to Order 17 Rule 2 applies only when an absentee party has already led evidence; here it did not apply. The Division Bench was justified in allowing the defendant's application and remitting the case for trial on merits.
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