IMPORTANT POINT
Provisions of Order V, Rule 20 and 17 CPC have to be followed in service of summons.
Remedy against ex Parte decree lies in an appeal u/s 96 and/or application under Order IX, Rule 13 CPC.

JUDGMENT

Dr. D.Y. CHANDRACHUD, J

1. Delay condoned.

2. The present appeal is from the judgment of a Single Judge at the Nagpur Bench of the High Court of Judicature at Bombay. 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.

3. The subject matter of the suit for specific performance is an agreement 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. The total consideration 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. The balance of Rs 9,78,391 was to be paid at the time of the execution of the sale deed.

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. 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. According to the plaintiff, the agreement was vitiated by fraud and misrepresentation and the land being ancestral property, the agreement was not binding on her. 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’). The appellant also filed her written statement. The suit was dismissed on 8 July 2010 on the ground that the land belonged to the original defendant and that the plaintiff had no right, title and interest.

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. On 9 February 2011, the Trial Court issued notice to the original defendant for settlement of issues. It appears that summons were issued on two occasions to the original defendant but were returned unserved. 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. The summons were returned since the defendant was not residing at the address given therein.

6. The appellant filed an application for substituted service under Order V Rule 20 (1-A) of the CPC on 2 September 2011. The Trial Court allowed the application on the same day in terms of the following order:

“Issue S/S to deft. u/o 5 R 29 (1-A) of CPC at the expense of the Plaintiff.”

7. The appellant claims to have effected substituted service by publication in the Marathi daily Lokmat. On 29 November 2011, the Trial Court passed the following order:

“Deft. served on public notice in daily news paper Lokmat on 04.10.2011 but he remained absent. Suit proceeded ex parte against the defendant. Suit proceeded ex parte against the Deft.”

8. The suit was decreed on 13 June 2014 and the appellant was directed to deposit the balance consideration of Rs 9,78,391 within one month.

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. He died on 21 August 2015. The appellant submitted an application for bringing his legal representatives on record. The application was eventually allowed on 23 September 2016.

11. The High Court by its judgment dated 7 July 2015 held that neither the report of the bailiff nor the order of the Trial Court indicate that a copy of the summons was affixed in a conspicuous place on the court house and at the house where t