In short. Served with summons in a summary suit and didn't file an appearance within 10 days? Then the law takes the plaint as admitted, and the plaintiff can ask the court for a decree at once under Order XXXVII Rule 2(3) CPC. This guide is for two readers: the creditor waiting for that decree, and the defendant who let the date slip. The decree usually follows within weeks of the service report. It's only as good as that service, though, and the defendant still has Rule 4 to try and get it set aside.
Is this your situation?
- Your summary suit was listed for the first time, the court master called out the defendant's name twice, and nobody stood up.
- The speed post tracking says "refused". The courier boy came back and said the shutter was down.
- A lawyer filed an appearance for them within the 10 days. Since then, silence. No leave application at all.
- You're wondering if the judge will really pass a decree without a single witness being examined.
- You run the business that was sued, and you found out about the decree only when your bank called about an attachment order.
- The summons went to the factory you vacated two years ago, or to an accountant who quit last Diwali.
- The defendant got leave to defend, fought for a few dates, and then simply stopped coming.
What happens when the defendant doesn't appear in a summary suit?
You become entitled to a decree. No trial. Order XXXVII Rule 2(3) of the Code of Civil Procedure, 1908 (CPC) says a summary suit defendant can't defend unless he enters appearance, and if he doesn't, the allegations in the plaint are deemed to be admitted. The court can then decree any sum up to the amount stated in the summons, with interest at the specified rate (if there is one) up to the date of decree, and costs. The Rule also says the decree may be executed forthwith. That means at once.
It's harsh. Deliberately so. Summary suits exist for claims so clear on paper that the defendant should either come forward with a real defence or pay up. If he can't be bothered to file a one-page appearance within ten days, the law assumes there's nothing to defend.
Two catches, though. The court won't pass the decree until it's satisfied the summons was actually served the way the law requires. And it still checks whether the suit really falls under Order XXXVII and whether the amount is a fixed sum on the documents. A no-appearance decree is quick, but it isn't automatic. How the whole procedure fits together is on our summary suit page.
"Didn't appear" can mean three different things
People say "the defendant didn't appear" loosely. In a summary suit it can mean three quite separate things, each with its own rule and its own remedy. Mixing them up is the commonest reason a plaintiff asks for the wrong order. It's also why defendants file the wrong application.
First, there's the defendant who never enters appearance after being served with summons in the summary suit form. Rule 2(3) applies and the plaintiff can ask for a decree at once. Second, the defendant who does enter appearance but then does nothing once the plaintiff serves the summons for judgment. That's Rule 3(6)(a): no leave application within ten days, and the plaintiff gets judgment forthwith. Third, the defendant who gets leave to defend, so the case turns into an ordinary trial, and then stops coming to court. That one is governed by the ordinary rules in Order IX CPC. The court proceeds ex parte (without that party) instead of decreeing the suit on the spot.
The table puts them side by side. After that we take each one in turn. Plaintiff's side first, then the defendant's.
No appearance under Order 37: three situations side by side
| Situation | Rule that applies | What the plaintiff gets | Defendant's main remedy |
|---|---|---|---|
| Summons served, nothing filed in 10 days | Order XXXVII Rule 2(3) | Decree up to the figure in the summons, plus the agreed interest and costs, executable straight away | Before decree, a Rule 3(7) plea to excuse the delay. After decree, a Rule 4 application |
| An appearance was filed, but no leave application came within 10 days of the summons for judgment | Order XXXVII Rule 3(6)(a) | Judgment on the claim, forthwith | Rule 3(7) to condone the delay; Rule 4 once a decree is passed |
| Leave came with a condition (say, a deposit) and the defendant didn't meet it | Order XXXVII Rule 3(6)(b) | Judgment forthwith | Seek extra time while the deadline is still running; once decreed, appeal or Rule 4, on the facts |
| Leave was granted and later the defendant stopped turning up | Order IX CPC (ordinary suit rules) | The suit goes ex parte; the plaintiff proves the claim by evidence and then gets a decree | Set-aside application under Order IX Rule 13, or an appeal |
The rules that decide a no-appearance case
Order XXXVII Rule 2(3), CPC
Without an appearance, the defendant has no defence at all. Everything alleged in the plaint is treated as admitted. The court can decree any amount up to what the summons states, add interest at the specified rate (where one exists) running till the decree, and give costs under the High Court's rules. Execution can begin forthwith.
Order XXXVII Rule 3(1) to (3), CPC
Summons goes to the defendant with a copy of the plaint and its annexures. He has ten days from service to enter appearance, either himself or through an advocate. With it he files an address where notices can be served, and on that same day he has to inform the plaintiff, or the plaintiff's advocate, that he's appeared.
Order XXXVII Rule 3(4) to (6), CPC
Once there's an appearance, the plaintiff serves a summons for judgment. It comes with an affidavit swearing that, as far as the plaintiff believes, the defendant has no defence. The defendant gets ten days from service to seek leave to defend. Three things end it in the plaintiff's favour: no application, leave refused, or a leave condition left unmet. Judgment then follows forthwith.
Order XXXVII Rule 3(7), CPC
Show the court sufficient cause and it can forgive a late appearance or a late leave application. For a defendant, this is the rope to grab before any decree is drawn up.
Order XXXVII Rule 4, CPC
Even after decree, special circumstances can persuade the court to set the decree aside, stay or cancel execution, and allow the defendant to appear and defend. The court does this only where it thinks it reasonable, and it can attach any terms it likes.
No proper service, no decree: what the court checks first
The service report is what every no-appearance decree stands on. Before the judge reads a line of the claim, the reader or court staff will want to know three things. How did the summons go out? On what date did it reach the defendant? Have ten clear days passed? If service looks doubtful, you'll simply get fresh summons and lose a date.
These days, commercial courts in Delhi and across the NCR take service by speed post, approved courier, and email if the defendant's email is on record. Many will allow WhatsApp or other electronic service on an application. In a summary suit the summons must use the special Order XXXVII format (Form No. 4 in Appendix B of the CPC). That form tells the defendant about the ten-day window and what missing it costs. Using the regular-suit summons by mistake happens more than you'd think, and the defendant will use it against you later.
When service fails, plaintiffs usually ask for dasti service, where their own representative delivers the summons and files an affidavit. Or they ask for substituted service under Order V Rule 20 CPC, by affixation or newspaper publication. A decree after substituted service is legally valid. It's also the decree most often reopened under Rule 4, because it's easier for the defendant to say he never actually saw the paper.
When Advocate B.K. Singh is asked to move for a decree on non-appearance, he first lays the tracking printout and the courier's proof of delivery next to the defendant's registered office in the MCA master data or its GST registration. Only then does he say anything to the court. If the address used isn't the one the defendant itself declared, he'd rather re-serve at the declared address first. Frankly, a decree that survives a Rule 4 application is worth more than one you got two weeks earlier.
If the defendant doesn't appear, does the plaintiff still have to prove anything?
Not in the usual sense, no. Witnesses aren't examined, issues aren't framed, and nothing goes to trial, because the plaint stands admitted. The judge still reads it, though. Before signing, three points get checked.
One: is this genuinely a summary suit? Order XXXVII is limited to suits on bills of exchange, cheques and promissory notes, and to suits for a debt or liquidated money demand that arises on a written contract, an enactment or a guarantee. A plaint asking for damages for lost profit, or a penalty, or any figure the judge would have to work out, can't be decreed under Rule 2(3) merely because the other side stayed home. Some judges decree the liquidated portion and leave the rest. Others push the whole thing onto the ordinary track.
Two: you can't get more than the summons says. Realised later that you under-claimed? The no-appearance route won't let you top it up.
Three: interest has to rest on something. The rate Rule 2(3) refers to is, in practice, the one in the contract, in invoice terms the buyer accepted, in the promissory note, or in a statute. Put 24 percent on an invoice that never mentioned interest, against a buyer who never agreed to any, and the judge will likely bring it down. Nobody needs to object for that to happen. Our guide on how interest is claimed in a summary suit goes through the rates courts tend to allow.
Getting a decree when the defendant stays away
This is the usual order of things in a commercial court in Delhi, Noida, Ghaziabad, Gurugram or Faridabad. How long each step takes depends on the court's board and how fast service gets done.
Pin down the date of service
Get the speed post tracking report, the courier's delivery proof, the email delivery record or the bailiff's report, and note the exact day the summons reached the defendant. Count ten days from that day. Not from the filing date, and not from the day the court issued summons.
File an affidavit of service
If you served the summons yourself, file an affidavit of service with the proofs attached. If the court served it, make sure the report has actually reached the file. A missing report is the most common reason these matters just get adjourned.
Ask for a decree under Rule 2(3)
On the next date, point out that the defendant hasn't entered appearance in time and ask for a decree. Lots of advocates file a short application for this. The court can act on an oral request too, if the record is clear.
Make the court's checking easy
Have a one-page calculation ready: principal, the interest rate and the document that fixes it, the period, and the total. Bring the original promissory note, cheque or bill. The court may want to see it, or order it deposited with an officer of the court under Rule 5.
Get the decree sheet and a certified copy
Once judgment is pronounced, the decree is drawn up. Apply for a certified copy straight away. You can't start execution without the decree sheet, and some courts take a few weeks to draw it up.
Move for execution
The decree can be executed forthwith, so you can file an execution petition right away, with an affidavit listing the judgment debtor's known assets. What comes next is in our guide on executing a summary suit decree.
They appeared but never applied for leave. Same thing?
The end result is close. The route isn't. By filing an appearance, the defendant keeps the door open, and now the plaintiff must serve a summons for judgment in Form No. 4A. It's backed by an affidavit that verifies the cause of action and the amount, and states the plaintiff's belief that no defence exists. The defendant's ten days to seek leave start running from service of that summons. Our guide on the summons for judgment explains the document properly.
Let the ten days pass without a leave application and Rule 3(6)(a) entitles the plaintiff to judgment forthwith. Courts are strict about this window. The defendant who files an appearance and then waits for the next date before thinking about a defence is the one who most often ends up with a decree against him, and a delay application the court isn't keen to allow.
Plaintiffs make a mistake here too. They forget to serve the summons for judgment at all. Because the defendant went quiet after appearing, they assume a decree will follow. It won't. Rule 3(6) doesn't kick in until the summons for judgment is served and the ten days are over.
Leave was granted, and then the defendant vanished
Once leave to defend is granted, the summary suit becomes an ordinary trial and Order XXXVII's sharp edges are gone. A defendant who then stops attending is dealt with under Order IX CPC. The court sets him ex parte, the plaintiff proves the case through affidavit evidence and documents, and a decree is passed on that proof.
Commercial suits add another trap: the written statement deadline. Suppose the court gave time for a written statement after granting leave, and the defendant let the outer limit lapse. He's lost the right to file it. In SCG Contracts v. K.S. Chamankar (2019), the Supreme Court confirmed there's no extending the 120-day limit in commercial suits. Someone who's stopped coming to court has almost certainly blown that deadline as well. So the plaintiff's evidence stands more or less unchallenged.
For the defendant, the way back is an Order IX Rule 13 CPC application to set aside the ex parte decree, on the ground that summons wasn't duly served or that sufficient cause prevented him from appearing. That test isn't the Rule 4 test under Order XXXVII. Keep them apart when you draft.
You're the defendant and you missed the date
Move this week. Not next month. What you can ask for depends on one thing: has a decree already been passed?
If no decree has been drawn up yet, file your appearance immediately along with an application under Rule 3(7) asking the court to excuse the delay. Explain, with dates and documents, why you didn't appear within ten days. A judge will forgive a short, honestly explained delay before decree far more readily than he'll reopen a decree after it.
If the decree's already been passed, you apply under Rule 4. In Rajni Kumar v. Suresh Kumar Malhotra (2003), the Supreme Court held that the defendant has to show two things. Special circumstances that stopped him from appearing or applying for leave. And facts, by affidavit or otherwise, that would entitle him to leave to defend. A good reason for being absent isn't enough by itself. If the affidavit shows no defence, the decree stays. The same judgment said every relief (setting aside the decree, staying execution, leave to defend) should be asked for in one application, not in instalments.
On time limits, courts haven't agreed on whether the 30-day period in Article 123 of the Limitation Act, 1963 applies or a longer residuary period. Don't be the test case. File within 30 days of learning about the decree, and prove the date you learnt of it. The drafting is covered in our guide on setting aside a summary suit decree under Rule 4, and the ex parte decree page explains how we handle these applications.
What courts usually accept as special circumstances, and what they don't
- The summons never reached you. It went to an address you'd left long before, and you can prove the move with a new rent agreement, a GST amendment or an MCA filing. That's the classic special circumstance.
- It was handed to the wrong person. A security guard in a shared building, or someone who used to work for you, may not be good service on a company. Courts still ask whether the paper actually reached someone responsible.
- Publication in a paper you'd never see. If the notice ran in a newspaper with no circulation where you actually work, that's a fair argument, especially when the plaintiff had a working email address for you.
- You were seriously ill or in hospital. This only works with medical records for the exact period, and only if nobody else could have instructed an advocate.
- Rarely accepted: "we were busy", or "we thought it was settled". Without a written settlement or a clear assurance from the plaintiff, courts see that as a choice you made.
- Usually rejected: you refused the envelope. A postal remark like "refused" counts as deemed service. Saying you didn't know what was inside won't help.
- Rejected: a defence you can't describe. Even with a perfect reason for being absent, an affidavit that just says "the claim is denied" fails the second half of the Rajni Kumar test.
What the court can demand when it reopens a decree
Rule 4 lets the court set the decree aside on whatever terms it thinks fit. Judges use that power often. If you've been absent for months, expect to be told to deposit part or all of the decretal amount, or to give security, before the case is reopened. The court may also make you pay the plaintiff's costs for the wasted round.
And setting the decree aside doesn't put the defendant into an ordinary suit. He goes back into the summary suit, at the leave to defend stage. The court may decide leave in the same order: grant it unconditionally, grant it on conditions, or refuse it. What happens after that is described in our guides on conditional leave and deposits and on the full leave to defend process.
For a plaintiff, a reopened decree is annoying. It isn't a disaster, if the claim was sound to begin with, because the leave hearing will still test whether the defence is real. What really hurts is a reopening caused by careless service. You lose months. The defendant gets time to move his assets.
Time and costs when the defendant doesn't show up
| Stage | Usual time | Costs to expect (not counting lawyer fees) |
|---|---|---|
| Section 12A mediation before filing (skipped only if urgent interim relief is sought) | Up to 3 months, extendable by 2 months if both sides agree; often over sooner when the defendant skips it | A small mediation fee under the 2018 Rules; check the current schedule |
| Plaint filed, summons issued | 1 to 3 weeks, depending on registry objections and listing | Ad valorem court fee on the claim, per the state schedule; check the current figure |
| Getting summons served | 2 to 8 weeks; more if substituted service is needed | Process fee, postage, courier and any newspaper publication |
| Time for the defendant to appear | 10 days from service | Nothing for the plaintiff |
| Decree because nobody appeared | Usually the first or second date after the 10 days end, if service is clean | Copying charges and the certified copy fee |
| Execution | Months, depending on what assets there are; the Supreme Court has directed that execution ordinarily be decided within six months | Process fees, and valuer and auction costs if property is sold |
| Defendant's Rule 4 application, if one comes | Anywhere from weeks to several months | Court fee on the application; the defendant may face costs or a deposit order |
Papers to have in hand on the decree date
Proof that service happened
- The speed post tracking printout and the acknowledgment card
- The courier's proof of delivery, with the name and date on it
- The email delivery record, showing which attachments went
- Your affidavit of service, if you did dasti service
- The newspaper copy and affixation report, if substituted service was ordered
Papers that prove the claim
- The original promissory note, cheque or bill, if that's what the suit is on
- The signed contract, purchase order or loan agreement
- Your invoices, and the defendant's ledger confirmation or written acknowledgment
- The Section 12A non-starter or failure report
- A certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 for emails and other electronic records
For the decree, and for execution after it
- A one-page interest calculation, with the clause that fixes the rate
- The defendant's company master data or GST registration, showing the address it declared
- Whatever you know of the defendant's bank accounts, properties and receivables
- A board resolution or authority letter for whoever signs for the plaintiff company
A made-up example: a Faridabad steel trader and a Ghaziabad fabricator
This one's invented. A steel trader in Faridabad sells MS angles and channels worth Rs 18.6 lakh to a fabrication unit in Ghaziabad. Their written rate contract says late payments carry interest at 18 percent per annum. In March the fabricator signs a ledger confirmation. Then nothing. He doesn't turn up for Section 12A mediation either, not even to ask for time, so it fails, and the trader files a summary suit in the commercial court the contract points to.
The Order XXXVII summons is sent by speed post and by courier to the factory address given in the rate contract. It also goes by email to the purchase manager, at the same address he'd used for every order. The courier's proof shows it was delivered at the factory. Ten days go by. Nobody. At the next hearing the trader's advocate puts in the service proofs and a calculation sheet. The court decrees the principal, interest at 18 percent from each due date as the contract says, and costs.
Six weeks on, the trader gets the fabricator's bank account attached. That's when a Rule 4 application lands. The fabricator's story is that the factory had shifted to a new industrial area two months before the summons. Trouble is, his GST registration still shows the old address. The email was delivered and opened. And all his affidavit offers by way of defence is a vague grumble about quality, never once put in writing. On those facts we'd expect the application to fail. Had the trader relied only on a newspaper notice at an address nobody used, the result could well have been different.
Which court passes the decree
The one that issued the summons. If it's a commercial dispute of Rs 3 lakh or more, that's a commercial court. Delhi splits by value. Up to Rs 2 crore, the District Judge (Commercial Court) hears it, at Saket, Tis Hazari, Karkardooma, Rohini, Dwarka, Patiala House and the like. Over Rs 2 crore, it's the Delhi High Court's Commercial Division. That district limit may be raised, as it's been under consideration, so confirm the figure on the day you file. In Ghaziabad, Gautam Buddh Nagar, Gurugram and Faridabad, the district's designated Commercial Court takes these suits.
What about claims under Rs 3 lakh, or ones with nothing commercial in them, like a loan between two friends? Those go to whichever ordinary civil court the High Court has notified for Order XXXVII, and the no-appearance rule works just the same there. On territory, the normal rules apply. You sue where the defendant carries on business or where the cause of action arose, unless a valid exclusive jurisdiction clause says otherwise. Our guide on where to file a summary suit explains this.
Reading a no-show if you're a supplier, lender or small firm
When a defendant doesn't appear, it usually means one of three things. The business has shut down, or is about to. The owners have decided the claim can't be answered and they're buying time. Or the summons genuinely didn't reach anyone who mattered. The first two call for fast execution. The third calls for re-service before you celebrate.
A supplier holding a signed rate contract and a ledger confirmation is in the strongest spot. Often the no-show ends it. A lender suing on a promissory note should keep the original safe and handy, because the court can ask for it. A service firm whose claim rests on timesheets and emails should expect more questions about whether the claim is truly liquidated, even with no defendant in the room. Startups and MSMEs suing big companies sometimes face the opposite problem. The big company's legal team enters appearance on day nine and applies for leave on day ten. That's a different fight, and it's covered in our guide on why some summary suits take years.
When no-show decrees reach Advocate B.K. Singh for execution, the gap we see most is that nobody traced the defendant's assets while the suit was pending. If the debtor didn't even bother to appear, don't expect him to pay voluntarily. Start looking for assets the day the ten days run out. Don't wait for the decree.
What to do this week
Plaintiffs first. Take out the service proofs and count ten days from the day the summons was actually delivered. Was it in the Order XXXVII form? Did it go to the address the defendant itself declared? If anything looks weak, serve again now. That beats asking for a decree that may be reopened later. Have the interest worked out and the originals ready for the next hearing. Our page on filing and running summary suits lists what we'll need from you at this point.
Defendants, find two dates: when the decree was passed and when you learnt of it. Gather proof of where you were actually doing business. Write out the precise defence you'd have taken. Then put it all into one complete application. Not five small ones.
Want your service record or your Rule 4 papers looked at before the next date? Or updates on how courts are treating no-appearance decrees? Share them with Advocate B.K. Singh's team through the contact page.
Frequently asked questions
Can the court pass a decree on the first date if the defendant is absent?
It can, provided the service report shows the Order XXXVII summons reached the defendant and ten days went by with no appearance. If service isn't clearly made out, expect fresh summons instead. In practice, the decree tends to come on the first or second date after the ten days end.
Is a summary suit decree on non-appearance the same as an ex parte decree?
Lawyers often call it ex parte, but it's a different rule. Under Order XXXVII Rule 2(3), the plaint is taken as admitted, and the remedy is Rule 4 of Order XXXVII rather than Order IX Rule 13. You only get into the ordinary ex parte route if leave was granted and the defendant dropped out afterwards.
Does entering appearance mean I've filed my defence?
No. The appearance is a short paper saying you intend to contest, along with an address for service. Your real defence goes into the leave to defend application, due within ten days of the plaintiff serving the summons for judgment.
Can the plaintiff get more money than the summons says if I don't appear?
No. Rule 2(3) caps it at the summons amount, plus interest at the specified rate and costs. To claim more, the plaintiff must amend the plaint and serve you again. The clock starts over.
What if the summons was refused at my office gate?
Refusal is generally treated as good service. You'd need to show that whoever refused had no connection with your business, or that the address wasn't yours. Otherwise it'll go against you in a Rule 4 application.
Can I appeal instead of applying under Rule 4?
Yes, a commercial summary suit decree can be appealed under Section 13 of the Commercial Courts Act, 2015 within 60 days. The trouble is that the appeal court looks at the record, and the record has no defence on it because you weren't there. When the real issue is the missed date, Rule 4 before the same court is usually the better tool.
Will the court stay execution while my Rule 4 application is pending?
Possibly. Most stays come with strings, usually a deposit or security. Ask for the stay in the same application, set out your defence clearly, and offer security. If you don't, attachment can carry on.
Do I still need Section 12A mediation if I expect the defendant not to appear?
You do, unless you genuinely need urgent interim relief. Expecting the other side to stay away isn't a reason to skip mediation, and a plaint filed without it can be rejected. If they don't turn up, the Legal Services Authority normally issues a non-starter report fairly fast.
Advocate B.K. Singh
Founder of B.K. Singh & Associates. MCA, LL.B., LL.M. More than twenty years in practice before the Supreme Court, the Delhi High Court, district and commercial courts in Delhi NCR, and tribunals.
This guide explains the law in general terms and is not legal advice. For advice on your own papers, contact the team.