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Discussion

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

Answer: A

The defendant may seek relief by applying for setting aside the ex-parte decree.

Order IX Rule 13 of the Code of Civil Procedure lets a defendant against whom a decree is passed ex parte apply to the court that passed it to set it aside, if he shows that the summons was not duly served or that he was prevented by sufficient cause from appearing. Its proviso deals with a decree against several defendants: where the decree cannot be set aside against one alone, it may be set aside against all or any of them.

An appeal or a review may also be available, but each option saying 'only' wrongly makes that route exclusive, and a separate suit is not the remedy the Code provides.

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