SMT INDIRABAI BABURAO SURYAVANSHI vs SMT SHANTHA MADHAVARAO MULIK

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
['RAVI S BALIKAI', 'K ANAND KUMAR', 'LRS DECEASED P', 'P', 'P', 'P', 'P', 'P & P', '', '', 'R - NOT KNOWN']

The captioned civil revision petition is filed by petitioner

in Misc.No.19/1994, who filed miscellaneous petition under

Order IX Rule 13 of CPC praying for setting aside the exparte

decree dated 18.10.1976 in O.S.No.55/1975 passed by the

Principle Civil Judge, Chikodi.

2. The facts leading to the case are as under:

The petitioners filed miscellaneous petition No.19/1994

under Order IX Rule 13 of CPC questioning the exparte

decree passed in O.S.No.55/1975. The petitioners claim that

one Tanubai Bhimarao Suryavamsi was the owner in

possession of the land bearing survey No.111 and 111/2,

situated at Nipani village of Chikodi taluk. The petitioners

claim that one Dattatreya Parvatrao Mulik created a false,

fabricated and forged agreement of sale purported to have

been executed by deceased Tanubai and filed a suit for

specific performance of contract in O.S.No.55/1975. The

petitioner also claimed that summons on deceased Tanubai

was never served on her. The petitioners further claimed that

Dattatreya created a false document regarding service of

summons and managed to obtaine an exparte decree against

deceased Tanubai for specific performance of agreement of

sale. The petitioners specifically claimed that their mother-

Tanubai never executed any agreement of sale in respect of

the suit lands. The petitioners specifically contended that

O.S.No.55/1975, no execution petition was filed during the

lifetime of deceased Tanubai. The petitioners claim that their

mother died on 14.01.1981 and it is only after her death,

suppressing all material facts, execution petition was filed in

the year 1996. Therefore, it is a specific case of the

petitioners that neither their mother Tanubai nor the present

petitioners were aware of the institution of suit in

O.S.No.55/1975 and were also not aware of passing exparte

decree against deceased Tanubai. The petitioners claimed

that they came to know about the decree only when they

appeared before the Executing Court in E.P.No.277/1986.

Hence, miscellaneous petition was filed by the petitioners

against the respondents.

3. The original respondent viz., Dattatreya filed his

objections by specifically contending that the miscellaneous

petition is time barred. The allegations in the miscellaneous

petition that no summons was served on deceased-Tanubai

amounts to contempt of Court and Court should take serious

note of the averments made in the miscellaneous petition.

The respondent contended that deceased-Tanubai had

voluntarily executed an agreement of sale in favour of

respondent-plaintiff viz., Dattatreya and though summons

was duly served on her, she did not chose to contest the suit

as the claim made by the respondent-plaintiff was true and

she had no defence.

4. The petitioners in order to prove and substantiate

their claim that summons was not served on their mother

and their mother during her lifetime was prevented by

sufficient cause for not appearing in the suit, let in oral

evidence by examining petitioner No.1 as PW1. In order to

prove that original defendant-Tanubai was not keeping good

health, examined two doctors as PW2 and PW3. The

orthopedic surgeon who has treated Tanubai at Miraj was

examined as PW2 and the family doctor of deceased Tanubai

was examined as PW3. In support of their contention, the

petitioners adduced documentary evidence vide Ex.P1 to

Ex.P12. The original plaintiff i.e., Dattatreya Mulik was

examined as DW1 and he adduced rebuttal documentary

evidence vide Ex.D1 to Ex.D4. The Trial Court, which has

contentions of the parties and the material placed on record

has come to the conclusion that the signature obtained on

postal acknowledgment produced at Ex.D2 bears signature of

deceased-Tanubai. The contention of petitioners that in 1974

deceased-Tanubai had sustained fracture of her right hip and

compound fracture of both bones of right forearm and was

unable to move and was no

2022 Supreme(Online)(Kar) 37705

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