Beyond the Defendant: Supreme Court Reconsiders Third-Party Access to Order IX Rule 13 CPC

Introduction

The Supreme Court of India has once again stepped in to address a persistent and unresolved question of civil procedural law: can a third party to a civil decree invoke Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) to set aside an ex parte decree?

In a significant order dated 7 February 2026, the Court referred this issue to a larger Bench, acknowledging conflicting precedents delivered by coordinate Benches. The reference underscores the Court’s concern over legal uncertainty and its broader implications for procedural fairness, third-party rights, and the doctrine of precedents.

The forthcoming larger Bench decision is expected to settle the law “once and for all,” giving much-needed clarity to courts and litigants across the country.

Understanding Order IX Rule 13 CPC

Order IX Rule 13 CPC provides a remedy to a defendant against whom an ex parte decree has been passed. The provision allows such a defendant to apply for setting aside the decree if:

1. The summons was not duly served, or
2. The defendant was prevented by sufficient cause from appearing when the suit was called on for hearing.

The language of the provision clearly refers to a defendant, which has traditionally led courts to view Order IX Rule 13 as a party-specific remedy. However, complexities arise when persons who were not parties to the suit, but whose rights are directly affected by the decree, seek recourse.

The Core Legal Question

The question before the Supreme Court is both narrow and far-reaching:

Whether a third party, who was not a defendant in the suit but is adversely affected by an ex parte decree, can maintain an application under Order IX Rule 13 CPC to have that decree set aside.

This issue frequently surfaces in cases involving:

• Property and land disputes
• Family and succession matters
• Allegedly collusive or fraudulent decrees
• Rights of subsequent purchasers or co-owners

Conflicting Supreme Court Judgments

The present Bench noted that the controversy stems from conflicting judgments of the Supreme Court itself, creating confusion in the lower judiciary.

Raj Kumar v. Sardari Lal & Ors. (2004)

In this judgment, the Supreme Court adopted a liberal and justice-oriented approach. It held that a third party whose rights are prejudicially affected by an ex parte decree is not without remedy and can invoke Order IX Rule 13 CPC.

The Court emphasised that:

• Procedural law is meant to advance justice
• A person whose rights are directly impacted should not be shut out merely due to technicalities
• Denial of a hearing to such a person would offend principles of natural justice

This ruling has been followed in several subsequent decisions.

Ram Prakash Agarwal & Anr. v. Gopi Krishan (Dead) through LRs (2013)

In contrast, the 2013 judgment took a strict textual interpretation of Order IX Rule 13 CPC. The Court held that:

• The provision is available only to parties to the suit
• A third party cannot invoke it
• Such persons must pursue alternate remedies, such as filing a separate suit or raising objections in execution proceedings

Notably, this judgment did not consider or refer to the 2004 ruling, resulting in a clear conflict.

Judicial Inconsistency and Its Consequences

The Supreme Court observed that:

• Subsequent judgments continued to follow the 2004 ruling
• These judgments often failed to notice the 2013 decision
• This led to parallel and inconsistent lines of authority

Such inconsistency poses serious challenges:

• Trial courts are unsure which precedent to follow
• Litigants face unpredictability
• Procedural remedies become unevenly applied

Recognising this, the Court found it necessary to seek an authoritative resolution.

Supreme Court’s Decision to Refer the Matter

The Bench comprising Justice Sanjay Kumar and Justice K. Vinod Chandran held that it was:

“proper and appropriate” for the issue to be settled “comprehensively and once and for all” by a larger Bench.

The Court further observed that a larger Bench ruling was required to “give a quietus to this legal conundrum.” Accordingly, the matter has been directed to be placed before the Chief Justice of India for constituting a larger Bench.

Why This Reference Is Important

1. Protection of Third-Party Rights

If a decree is passed ex parte and adversely affects a person who was never heard, denying them access to Order IX Rule 13 may result in serious injustice, particularly in cases of collusion or fraud.

2. Procedural Discipline vs Substantive Justice

The larger Bench will need to strike a balance between:

• Maintaining procedural discipline and certainty
• Ensuring access to justice and fair hearing

3. Avoidance of Multiplicity of Proceedings

Allowing third parties to invoke Order IX Rule 13 could:

• Prevent unnecessary separate suits
• Reduce prolonged execution litigation
• Promote judicial efficiency

4. Doctrinal Clarity in CPC Jurisprudence

The ruling will clarify:

• Whether Order IX Rule 13 is strictly party-centric
• Or whether it can be expansively interpreted in exceptional circumstances

Possible Approaches Before the Larger Bench

The larger Bench may consider multiple approaches:

1. Strict Interpretation
   Limiting Order IX Rule 13 strictly to defendants named in the suit.
2. Liberal Interpretation
   Permitting third parties whose rights are directly affected to invoke the provision.
3. Qualified Liberal Approach
   Allowing third-party applications only where:

• The decree is alleged to be fraudulent or collusive
• The applicant’s rights are directly and substantially affected
• No equally efficacious alternative remedy exists

Relevance for Law Students and Practitioners

This reference is particularly valuable for:

• CPC and civil procedure examinations
• Judicial services preparation
• Case comments and research papers
• Civil litigation practice

It neatly illustrates:

• Conflict between coordinate Benches
• Reference to larger Bench
• Limits of procedural provisions
• Interaction between procedure and natural justice

Conclusion

The Supreme Court’s reference in N. Rajaram v. R. Murali & Ors. marks an important moment in the evolution of Indian civil procedure law. By acknowledging conflicting precedents and seeking a larger Bench ruling, the Court has reaffirmed its commitment to clarity, consistency, and fairness in procedural justice.

The final word of the larger Bench will significantly shape how courts balance procedural rigour with substantive rights — not just for defendants, but for all those whose legal interests are affected by civil decrees.

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