Point of Law:
Law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case

JUDGMENT :

1. Heard Sri Y.S. Bohra, learned counsel for the petitioner and Sri Dinesh Pathak and Ms. Sandhya Singh, learned counsel for the respondent.

2. The petitioner by means of the present writ petition has assailed the order dated 8.11.2011 passed by Additional District & Sessions Judge, Court No. 3, Bulandshahr in Misc. Appeal No. 26 of 2011 (Kalyan Singh Vs. Brajpal) whereby the Appellate Court has condoned the delay in filing the application under Order 9 Rule 13 of Civil Procedure Code, 1908 (hereinafter referred to as 'CPC') of the respondent and further allowed the application under Order 9 Rule 13 of CPC and set aside the ex-parte judgment dated 13.9.2005.

3. Brief facts giving rise to the present writ petition are that the respondent-Kalyan Singh executed an agreement to sale in favour of Brajpal Singh-petitioner in respect of 1/4th share of Plot No. 329 total area 1.564 situated at Village Khanauda, Pargana and Tehsil Anupshahr, District Bulandshahr for a sale consideration of Rs. 1,50,000/-. The petitioner paid Rs. 1,25,000/- in advance on 1.7.2002 to Kalyan Singh. As per terms and conditions of the agreement to sale, the sale deed was to be executed within one year from the date of agreement to sale i.e. on or before 30.6.2003.

4. As the sale deed was to be executed on or before 30.6.2003, the petitioner gave a notice dated 2.6.2003 through Advocate to the respondent asking him to execute the sale deed within 15 days from the date of receiving of registered notice. By the said notice, the petitioner also requested the respondent to inform the date on which the sale deed is to be executed so that he may remain present in the registry office for the execution of sale deed. The respondent did not reply to the notice dated 2.6.2003. However, the petitioner was present in the registry office with the balance sale consideration of Rs. 25,000/-and other incidental expenses for the purpose of execution of sale deed. The respondents did not turn up for execution of sale deed. When the respondent did not execute the sale deed despite the request by petitioner several times, the petitioner gave another notice dated 25.4.2004 asking the respondent for execution of sale deed. The respondent despite service of notice dated 25.4.2004 did not execute the sale deed.

5. In the aforesaid factual backdrop, the petitioner instituted an Original Suit No. 479 of 2004 before the Court of Civil Judge (Senior Division), Bulandshahr praying for a decree of specific performance of contract for execution of sale deed in respect of the aforesaid property.

6. In the suit, summons were issued to the respondent. The summons were sent to the respondent trough process server as well as by registered post. The summons sent by the registered post was refused by the respondent on 18.10.2004. The postal department returned the summons with endorsement ^^ysus ls euk fd;k**.

7. The wife of the respondent refused to accept the summons sought to be served through process server and also refused to tell the address of her husband. The process server submitted a report on the back side of the summon which contained signature of two witnesses namely (1) Brajpal Singh s/o Arjun Singh and (2) Om Prakash Raghav s/o Kuwarpal Singh Raghav. The report of process server stated that the wife of the respondent Kalyan Singh refused to receive the summon and also refused to tell the address of Kalyan Singh, therefore, the summon was affixed on the door of the house. In view of the aforesaid fact, the Trial Court found service of summons upon the respondent sufficient, and consequently, it passed an order dated 20.4.2005 to proceed ex-parte in the suit. The order of the court below dated 20.4.2005 reads as under:-

^^20-04-2005

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