APPLICABILITY OF RES-JUDICATA ON EX-PARTE DECREE

Subject: 6.1 Code of Civil Procedure

Academic Year: 2021-2022

Semester: VI

Submitted by,

Deovrat Wade,

UG2020-61

Submitted to,

Ms. Sanya Agarwal,

Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

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 CONTENTS

Sr. No. Contents Page No.

1. Introduction 3

2. Objectives 3

3. Research Methodology 4

4. Research Questions 4

5. Chapter 1. What is the ‘Doctrine of Res- 4

Judicata’?

6. Chapter 2. What is ‘Ex-Parte Decree’? 6

7. Chapter 3. Applicability of Res Judicata on 8

Ex-Parte decree

8. Conclusion 10

9. Bibliography 11

Introduction: -
The concept of ‘Res Judicata’ has been defined under the section 11 of the code of civil
procedure. The section 11 explains the doctrine of res-judicata. It says that when a matter
pertaining to the question of law has been decided upon between the two parties in a
previously instituted suit then it cannot be tried again in a court of law provided that it fulfils
some conditions, like the decision should be final in nature and no appeal should have been
filed within time and if filed it would have been dismissed so that neither of the parties can
file a future suit on the same matter. This principle has been founded upon principles like
justice, equity, and good conscience. The various essentials that are required to be fulfilled

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for the applicability of res-judicata, some important judicial pronouncements on the topic,
weather or not it is applicable to ex-parte decree orders, and some other concepts like
constructive res-judicata have been discussed in this paper.

Ex-parte decrees have been defined under the Order 9 Rule 6 of the Code of Civil procedure.
Order 9 states that if the defendant fails to show up before the court at the date of hearing in
spite of summons being served to him, the court can pass a decree without the defendant
being present and such a decree passed by the court is called as an ex-parte decree. For an
ex-parte decree to be valid there are certain conditions to be met which have been further
discussed in the present paper along with some of the remedies available against an ex-parte
decree along with some judicial pronouncements on this concept of ex-parte decree.

The author has also shined some light on the question weather the doctrine of res-judicata
will be applicable to ex-parte decree orders. This question in simpler terms means that if an
ex-parte decree order has been passed in a previous suit, then can the same ex-parte order
serve as res-judicata in the subsequent suit.

Objectives: -

 To study the concept of Res-judicata and the section 11 of CPC.

 To study the concept of Decrees under CPC, specifically ex-parte decrees.

 To study if the concept of res-judicata be applied to ex-parte decree.

Research Methodology: -
Doctrinal analysis is used to cover all of the subject's sources. The majority of their contents
are concerned with identifying and evaluating the sources that assist in making this research
project while reviewing many textbooks on the relevance of the topic. Internet sources have
also been used for collecting data. Sometimes we cannot trust the data from internet sources
as it might not be authentic but the use of verified sources can secure correct information.

Research Questions: -

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  What factors have to be fulfilled by a decree to be qualified as a valid ‘Ex-Parte
Decree’?
 What remedies are available against the Ex-Parte Decrees under the code of civil
procedure?
 Can the Doctrine of Res-Judicata be applied to subsequent matters where previously
an Ex-Parte decree has been passed?

Chapter 1.) What is the ‘Doctrine of Res-Judicata’?

Res Judicata is a doctrine of estoppel that prohibits the rehearing of certain lawsuits under
certain conditions. It is a Latin term that means "an adjudicated matter." It refers to a case that
has been definitively decided by a court and will not be considered again. It also functions as
an affirmative defence for a lawsuit involving the same claim or any other claim resulting
from the same transaction (legal issue) or series of transactions that could have occurred. 1

The doctrine of Res-Judicata has been explained in various landmark judgments over the
period of years. In the judgment ‘Satyadhyan Ghosal v. Deorijin Debi’2 the apex court had
explained res-judicata as: -

“The principle of res judicata is based on the need of giving a finality of

judicial decisions. What it says is that once a res is in judicata, it shall not be
adjudicated again. Primarily it applies as between past litigation and future
litigation. When a matter on question of facts law – has been decided
between two parties in one suit or proceeding and the decision is final, either
because no appeal was taken to a higher court or because the appeal was
dismissed, or no appeal lies, neither party will be allowed in a future suit or
proceeding between same parties to canvass the matter again.”

The Doctrine of Res-judicata says that an issue or a point that has already been
decided by the court in a suit and such decision has attained finality in the eyes of the
law then the same issue cannot be raised by the same parties of the previous suit, the

1
Garner, B. A. (Ed.). (2009). BLACK'S LAW DICTIONARY (9th ed., p. 1425). Dallas: West, AThomson
Buisness.
2
AIR 1961 SC 941

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matter cannot be opened again and tried twice. 3 In the case of Mahesh Kumar Joshi v.
Madan Singh Negi4, the various articles and sections where res judicata have been
mentioned like the Article 20(2) of the Constitution of India, Section 26 of the General
Clauses Act, Section 300 of code of criminal procedure, etc.

Res Judicata is based on two basic principles ‘interest republicae ut sit finis litium’
and ‘nemo devet vis vexari pro una et eadem cause’. The first principle means that
it is in the interest of the state that litigation should come to an end. It is essentially the
principle of finality of litigation and is based on the idea that there should be finality of
litigation and also on the principles of public policy. The second above mentioned
principle means that no man should be taxed twice for the same issue. This principle
was applied and upheld in the case of ‘Sulochana Amma v. Narayanan Nair’5,
wherein it was held that this principle works against both the parties and is applicable
to all the judicial proceedings of courts as well as quasi- judicial proceedings in
tribunals.

For the applicability of Res-Judicata to a case it is essential to check the forom or the
competence of the court involved, the parties involved and the representatives present,
the issues in the present and previous suit, final decision, etc. Before the application of
the doctrine of res-judicata there must be certain essential conditions that must be
fulfilled like: -
1. Two suits must be present between the same parties or their legal
representatives.
2. The litigation must occur under the same title.
3. The issue in question must be directly or substantially similar in both the cases.
4. Either one of the suits must have reached finality and be finally decided, i.e.,
the doctrine of res-judicata will not apply if the matter is in appeal and the
matter is yet to reach finality.
5. The order that has been passed in the prior suit must have been passed by the
court who has the jurisdictional power to do so or else such an order will be

3
Moschzisker, Robert von. “Res Judicata.” The Yale Law Journal 38, no. 3 (1929): 299–334.
https://doi.org/10.2307/790303.
4
AIR 2015 SC (974)
5
AIR 1994 SC (152)

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 invalid, which would in turn mean that res-judicata will not be applicable, and
the subsequent suit placed will be valid.

The explanation IV of the section 11 has been termed as the ‘Doctrine of Constructive
Res-Judicata’. The doctrine of constructive res-judicata ties naught to any of the
claims raised in the subsequent proceedings where such a claim wasn’t raised in the
earlier proceeding where it ought to have been raised. 6 This is therefore a rule of
prudence and thus this doctrine seeks to bar the determination and enforcement of the
claims which were not raised at an appropriate juncture in the judicial proceedings.

Chapter 2.) What is Ex-Parte Decree?

A decree is an official order that has been passed in the civil suits under the section 2 (2) of
the CPC. A decree is a final expression of adjudication that conclusively determines the
rights of the parties in matters of controversy. A decree must be preliminary or final. A
decree doesn’t include the appeal that lies as an appeal from orders of dismissal because of
default on account of the parties. There are various essential elements to constitute a valid
decree which were mentioned and elaborated upon in the judgment of “Vidyacharan Shukla
v. Khubchand Baghel” which were: -
1. Formal expression of adjudication
2. Adjudication is to be done in a suit
3. The said adjudication that has taken place must determine the rights of the parties.
4. It must be conclusive in nature.
5. Formal expression of the adjudication must be present.
An ex-parte decree is a type of decree and is a legal term used in the Code of Civil Procedure
that refers to a court order or judgment that is made in the absence of one of the parties
involved in the case.7 In other words, it is a decree that is passed without the other party being
given an opportunity to be heard in court. The Latin phrase 'Audi Alteram Partem' says
'Listen to both parties' and falls under the principles of natural justice. Both the parties of a
suit are entitled to a fair hearing. If a party fails to present at the appointed time, the court will
issue summons and notices to appear. When a plaintiff was available during the proceedings

6
“Res Judicata.” Harvard Law Review 17, no. 6 (1904): 406–7. https://doi.org/10.2307/1322427.
7
"Ex Parte Decrees”, Allahabad Law Journal 5, Mohammad Said, No. 20 (December 1, 1908): 309-318

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of a civil suit but the defendant was not, and a summons was made, the court could move
against the defendant and give an ex-parte decree.

The court has the authority to issue an ex-parte decree under Rule 6 of Order 9 of the CPC.
The order states that if the defendant fails to appear in court after being served with a
summons, the court may issue an ex parte decree. If the summons is not properly served,
however, the court will issue a second summons to the defendant. When the summons is duly
served but the defendant does not have sufficient time to appear in court, the court will
postpone the proceeding. If the court determines that the summons was not issued properly
due to the plaintiff's error, the plaintiff will be required to pay the costs associated with
postponing the hearings.

Such a decree may be passed when one party fails to appear in court or does not respond to a
legal notice or summons. In such cases, the court may proceed with the case and make a
decision in favour of the party who is present or has responded to the legal notice. However,
it is important to note that an ex-parte decree is not the final decision in a case, and the party
against whom the decree is passed can apply to have the decree set aside or modified. The
Code of Civil Procedure provides for various provisions for setting aside ex-parte decrees if
the party can provide sufficient grounds for doing so. In the case of M. Krishnappa v.
Mensamma, it was held that when the defendants attended an appearance and had not argued
the case on that date then such a situation would be classified under ex-parte and the
defendants could maintain a petition under the Order 9 Rule 13 of the CPC.

The Order 9 Rule 13 provides grounds for the defendants so that they can apply for the
setting aside of the ex-parte decree. The court will only set aside the ex-parte decree if the
defendant provides the court with a satisfactory reason or if the summons wasn’t properly
served. This means that the defendant firstly should have a sufficient ground for his non-
appearance as held in the case of G.P. Srivastava v. Shri R.K. Raizada and Ors. Another
ground for the setting aside of the ex-parte decree would be if the summons wasn’t duly
served to them. In such cases where the summons isn’t served properly to the defendants then
they don’t get sufficient time to appear before the court. In such cases the ex-parte decree
would be set aside as held in the case of Sushil Kumar Sabharwal v. Gurpreet Singh and Ors.

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Once the defendant presents these grounds presents sufficient cause for his non-appearance
and the court accepts such reasoning then the ex-parte order will be set aside. The code of
civil procedure provides multiple ways in which the defendant can set aside the decree and
get a chance to present this case. Some of the remedies available to the defendant against the
ex-parte decree are: -
 Application for setting aside under the order 9 rule 13
 Appeal against decree under the section 96(2)
 Filing a revision application under Section 115
 Filing a review of the decree under the order 47 rule 1 of CPC

Chapter 3. Applicability of Res-Judicata to Ex-Party Decree Orders

This issue weather or not the doctrine of Res-Judicata will be applicable or not to Ex-Party
Decree order has been deliberated upon in many judgments over the period of time by many
courts in our country. Res judicata is a legal principle which holds that once a matter has been
finally adjudicated by a competent court, it cannot be reopened or litigated again. The
doctrine of res judicata applies not only to final judgments but also to final orders, including
ex-parte decree orders. Here are some Indian case laws where it has been held that res
judicata applies to ex-parte decree orders:

 Kuppuswami v. Arumugam, AIR 1966 SC 1313: In this case, the Supreme Court
held that the doctrine of res judicata applies to ex-parte decree orders as well as to
orders passed after contested hearings.

 State of Punjab v. Amar Singh Harika 8: The Supreme Court in this case held that a
decision in a suit, even if ex-parte, operates as res judicata between the parties and the
issue cannot be re-agitated in a subsequent proceeding.

 Madan Mohan v. Radha Mohan9: In this case, the Supreme Court held that the
principle of res judicata applies to all judgments and orders, whether passed after
contested hearings or ex-parte.

8
AIR 1966 SC 1313
9
AIR 1958 SC 441

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  Rameshwar Singh v. Shambehari Lal Singh10: The Supreme Court held in this case
that an ex-parte decree is as conclusive between the parties as a decree passed after a
contest and operates as res judicata in a subsequent suit.

 Kamlakshi Finance Corporation Ltd. v. Haryana Financial Corporation 11: The

Supreme Court held in this case that an ex-parte decree operates as res judicata
between the parties and cannot be challenged in a subsequent proceeding.

Also, the Supreme Court in the case of Saroja v. Chinnusamy (dead) By Lrs. deliberated
upon this issue. In this judgment it was held that the doctrine of res-judicata will be
applicable to the ex-parte decree as long as the essential principles of the res-judicata were
fulfilled. It was held by the apex court in this particular judgment that as long as the summons
was duly served and other conditions were fulfilled then the doctrine of res-judicata will be
applicable to ex-parte decree orders. It was further held in this judgment that if the ex-parte
decree was obtained by fraudulent way, then the principle of res-judicta would not be
applicable.

An ex parte decree is legally binding unless cast aside. However, the genuine criterion for res
judicata is whether the case was decided on its merits. The true test for determining whether
or not the judgement was based on the merits is whether or not it was merely a formality, a
punishment for the defendant's behaviour, or based on an evaluation of the true or false
nature of the plaintiff's claim, regardless of the fact that the evidence was presented in his
absence. Therefore, the fact that a judgement was issued ex parte does not declare it res
judicata. As a result, it functions as a res judicata.

Therefore, it can be said that when an application to set aside an ex-parte decree is dismissed
then a fresh application cannot be filed if it is dismissed on the ground of merits and the rule
of res-judicata would be applicable. But it was held in the case of Raj Kumar v. Prescribed
Authority12 that If the dismissal is for the default of the appearance or circumstances have
been changed then a second application in such cases would be maintainable. All the above-
mentioned cases establish that the doctrine of res judicata applies to ex-parte decree orders as

10
AIR 1964 SC 330
11
AIR 2009 SC 2649
12
(1983) 2 SCC 254

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well as to orders passed after contested hearings. Once a matter has been finally adjudicated
by a competent court, it cannot be reopened or litigated again.

CONCLUSION

In the present project the researcher has discussed the concept of ‘Res-Judicata’, the
essentials that are required for the doctrine of res-judicata to be applicable, concept of res-
judicata, constructive res-judicata, ex-parte decree, the various grounds on which ex-parte
decree can be set aside and the remedies that are available to a defendant against whom an
ex-parte decree has been ordered. Res judicata is a Latin term that translates to "a matter
already judged." It is a legal principle that holds that once a matter has been conclusively
decided by a competent court, it cannot be reopened or re-litigated. This principle serves an
important purpose in the legal system as it ensures finality and certainty in legal proceedings.
It prevents parties from repeatedly bringing the same issue before a court, which can be a
waste of time and resources.

Ex-parte decree, on the other hand, is a court order that is made without hearing from the
opposing party. It is usually granted in urgent situations where immediate relief is required,
such as in cases of domestic violence or property disputes. An ex-parte decree is not final and
can be challenged by the opposing party once they are notified of the court's decision. The
importance of res judicata lies in its ability to bring finality and closure to legal disputes. It
ensures that the parties involved in a case can move on with their lives without the threat of
further litigation. Res judicata also promotes judicial efficiency by preventing the courts from
being clogged up with repeated litigation on the same matter.
Ex-parte decrees are important as they provide immediate relief to parties in urgent situations.
They enable courts to act swiftly to prevent irreparable harm and protect vulnerable parties.
However, the use of ex-parte decrees is generally discouraged as it goes against the principles
of natural justice and fairness, which require that both parties have the opportunity to be
heard before a decision is made.

In conclusion it can be said that that if the principles of res-judicata are fulfilled and the
essential elements of ex-parte decree are fulfilled then the doctrine of res-judicata will be
applicable to ex-parte decrees.

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Bibliography: -

Papers referred: -
 "Ex Parte Decrees”, Allahabad Law Journal 5, Mohammad Said, No. 20 (December 1,
1908): 309-318
 Res Judicata.” Harvard Law Review 17, no. 6 (1904): 406–7.
https://doi.org/10.2307/1322427. Moschzisker, Robert von. “Res Judicata.” The Yale
Law Journal 38, no. 3 (1929): 299–334. https://doi.org/10.2307/790303.
 Garner, B. A. (Ed.). (2009). BLACK'S LAW DICTIONARY (9th ed., p. 1425).
Dallas: West, A Thomson Buisness.

Book Referred: -
 Civil Procedure, C.K. Takwani, 9th edition

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