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10. The last corrective provision in the Code of Civil Procedure, 1908 is Rule 13 of Order IX which provides the circumstances under which an ex parte judgment and decree could be set aside/rescinded. Rule 13 of Order IX reads as hereunder:-

13. Setting aside decree ex parte against defendant--

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim] [Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.]

11. It would be relevant here in this context to state that before the amendment in the Code of Civil Procedure, Rule 13 of Order IX provided that when a decree had been passed ex parte against the defendant who satisfied the Court that summons were not duly served upon him, the Court was bound to set aside the decree. It was immaterial whether the defendant had knowledge about the pendency of suit or whether he was aware as to the date of hearing and yet did not appear before the Court. The Law Commission, after considering the expression "duly served", recommended for amendment of Rule 13 and a second proviso was added mandating that an ex-parte decree shall not be set aside merely on the ground of irregularity in the service of summons if the Court was satisfied that the defendant was aware of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.

(Emphasis provided)

27. In the case of Basant Singh and Anr vs. Roman Catholic Mission, 2002 (7) SCC 531, the Supreme Court again clarified as to how the onus of proof would be discharged in a case under Order IX Rule 13 CPC. It was clarified that the defendant would be required to examine the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication of the issue. Since in that case the defendant had failed to discharge the onus cast upon him by the Statute, the ex parte decree was not set aside. Para 11 of the aforesaid judgment is quite instructive:-