On being satisfied the court shall make an order setting aside the decree as against the defendant applying or all them, if it is of such a nature that it cannot be set aside against the applicant only, upon such terms as to costs at it thinks fit. [O. 9. R. 13].
The proviso to rule 13 further lays down 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 plaintiffs claim.
The Explanation added to rule 13 provides that where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal; no application shall lie under this rule for setting aside that ex parte decree.
The only grounds mentioned in the above rule for setting aside the ex parte decree are that the defendant had not been actually served with the summons of the suit or, in spite of service; the defendant was prevented by any sufficient cause from appearing at the date of hearing.
The onus of proving not duly served is on the applicant. The rule can have no application where the defendant refused the summons. Sufficient cause must be other than lack of knowledge of the proceedings. The question to be considered in such cases is whether the defendant honestly intended to toe presented at the hearing and did his best to do so.
The merits of a case should not form part of an element for consideration in disposing of an application to set aside a dismissal for default nor should the trial court set aside an ex parte decree for the ends of justice where it is satisfied that there was no sufficient cause for the non-attendance of the party.
If an ex parte decree is set aside in contravention of the above provisions, it will amount to a material irregularity and the order is liable to be set aside in revision.