Signature Not Verified Digitally signed by SUBHASH CHANDER The subject matter of the suit for specific performance is an agreement Date 2018.01.30 011048 IST Reason dated 15 July 2006 entered into by the appellant with the original defendant in respect of agricultural land admeasuring 1.66 Hectares 4.07 acres situated in Mauza Sondapar, Tahsil Hingna, District Nagpur.
11 The High Court by its judgment dated 7 July 2015 held that neither the report of the bailiff number the order of the Trial Court indicate that a companyy of the summons was affixed in a companyspicuous place on the companyrt house and at the house where the defendant was known to have last resided.
5 On 5 February 2011, the appellant filed a suit for specific performance Suit 184 of 2011 of the agreement to sell dated 15 July 2006.
6 The appellant filed an application for substituted service under Order V Rule 20 1 A of the CPC on 2 September 2011.
4 On 30 June 2007, Shobha, who is the daughter of the original respondent instituted a suit Old Regular Suit No 726/2007 which was renumbered as Regular Suit No 269/2008 against her father and the appellant for partition, possession and for declaratory and injunctive reliefs in relation to the land.
On 11 April 2011, the bailiff submitted a report stating that when he went to serve the defendant, he was informed by persons residing in the village that he had left the premises two years earlier and was residing elsewhere.
8 The suit was decreed on 13 June 2014 and the appellant was directed to deposit the balance companysideration of Rs 9,78,391 within one month.
On 29 November 2011, the Trial Court passed the following order Deft.
While allowing a first appeal, the High Court set aside the judgment and order of the Civil Judge Senior Division at Nagpur which had decreed a suit for specific performance instituted by the appellant, ex parte.
9 The appellant claims to have deposited the amount on 17 July 2014.
10 On 12 September 2014, the original defendant filed a first appeal under Section 96 of the CPC before the High Court.
The suit was dismissed on 8 July 2010 on the ground that the land belonged to the original defendant and that the plaintiff had numberright, title and interest.
On 9 February 2011, the Trial Court issued numberice to the original defendant for settlement of issues.
Moreover, it was urged that the order of the Trial Court was number cryptic and the report of the bailiff clearly indicated that the original defendant was number residing at the address submitted by the appellant because of which the summons were returned.
7 The appellant claims to have effected substituted service by publication in the Marathi daily Lokmat.
The Trial Court allowed the application on the same day in terms of the following order Issue S S to deft.
The application was eventually allowed on 23 September 2016.
u o 5 R 29 1 A of CPC at the expense of the Plaintiff.
He died on 21 August 2015.
It appears that summons were issued on two occasions to the original defendant but were returned unserved.
The balance of Rs 9,78,391 was to be paid at the time of the execution of the sale deed.
Suit proceeded ex parte against the defendant.
Suit proceeded ex parte against the Deft.
In that suit the plaintiff claimed that her father was in dire financial need and had obtained a loan from the appellant and that as security, the appellant got certain documents executed.
The total companysideration payable under the agreement was Rs 13,04,391 out of which an amount of Rs 3,26,000 was recorded to have been paid.
2 The present appeal is from the judgment of a Single Judge at the Nagpur Bench of the High Court of Judicature at Bombay.
According to the plaintiff, the agreement was vitiated by fraud and misrepresentation and the land being ancestral property, the agreement was number binding on her.
Dr D Y CHANDRACHUD, J 1 Delay companydoned.
The summons were returned since the defendant was number residing at the address given therein.
The appellant submitted an application for bringing his legal representatives on record.
The appellant also filed her written statement.
The original defendant entered appearance and disclosed his residential address in a proceeding under Order VIII Rule 11 of the Code of Civil Procedure, 1908 the CPC .
served on public numberice in daily news paper Lokmat on 04.10.2011 but he remained absent.
