Filing Vakalatnama in a decreed suit

The situation of filing vakalatnama after passing of decree by a court may arise in case of an ex-parte decree. This eventuality has been provided for under order IX Rule 13 of the Code of Civil Procedure,1908.The provision says that-  in a case in which a decree has been passed ex-parte against a defendant, the affected party, may apply to the court, which has passed the decree, to set aside the decree.

The affected defendant will have to satisfy the court  for – 

(i)                Sufficient cause for its non appearance;

(ii)             Non service of summons; etc.

On being satisfied of the ground shown by the defendant concerned, if it appears to the concerned court that the  decree in issue cannot be set aside as against the applying defendant only and it has to be set aside for all the defendants, the court proceed accordingly.

 However, if any appeal has been preferred against such ex-parte decree by the court and the same is pending, no such application under order IX Rule 13 can be entertained by the court below.

In G.P. Srivastava Vs. R..K. Raizada, 2000 DGLS(Soft) 454, the Hon’ble Supreme Court of India has dealt with such an eventuality and directed the trial court to allow the appellant-defendant to prove his case within a specified time frame of six months.

Again, in an execution proceeding under Order XXI of the code of Civil Procedure,1908, arising out of a decreed suit, fresh vakalatnama may be filed by the contesting parties.

Eventuality may arise when the decree holder or the judgement debtor dies in between passing of a decree by a civil court of competent jurisdiction and institution of execution proceeding by any of the parties. In such a situation the affected party may move the trial court for appropriate substitution by filing fresh vakalatnama.

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