IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17^TH DAY OF APRIL 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100472 OF 2023 (SP)

BETWEEN:

SRI. BHIMAPPA S/O. RAMAPPA TUGADALI AGE: 93 YEARS, OCC: AGRICULTURE, R/O. MUGALKHOD VILLAGE, TAL: RAIBAG, DIST: BELAGAVI-591317.

…APPELLANT (BY SRI. RAJENDRA R.PATIL, ADVOCATE)

AND:

Digitally signed by ASHPAK

1. SMT. BHAGYASHRI KASHIMSA MALAGALADINNI W/O. LATE CHIKKAYYA MATHAD, Location: HIGH COURT OF AGE: 33 YEARS, OCC: HOUSEHOLD KARNATAKA DHARWAD BENCH AND AGRICULTURE, Date: 2025.04.25

14:29:53 +0530 R/O. BANDIGANI, TAL: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587311.

2. SMT. DANESHWARI W/O. LATE CHIKKAYYA MATHAD, AGE: 34 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, R/O. BANDIGANI, TAL: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587311.

3. KUMAR SHIVAPADMANAM S/O. LATE CHIKKYYA MATHAD, AGE: 9 YEARS, OCC: STUDENT.

7. KUMAR AMARNATH S/O. LATE CHIKKAYYA MATHAD, AGE: 7 YEARS, OCC: STUDENT, RESPONDENTS NO.3 AND 4 ARE MINOR REPRESENTED BY THEIR NATURAL MOTHER MINOR GUARDIAN RESPONDENT NO.2.

…RESPONDENTS (BY SRI. RAHUL S.KUNTOJI, ADVOCATE)

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 01.03.2021 PASSED IN O.S. NO.189/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE OF CONTRACTBARRED BY PERIOD OF LIMITATION.

THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is by the defendant who has questioned the judgment and decree rendered in O.S.No.189/2019. The trial Court has placed the defendant exparte and has proceeded to partly decree the suit filed by the plaintiffs thereby directing the defendant to refund earnest money of Rs.15,00,000/- with interest at the rate of 6% per annum from the date of decree within

90 days.

2. For the sake of brevity, the parties are referred to as per their rank before the trial Court.

3. The plaintiffs instituted the present suit seeking the relief of specific performance of contract based on an agreement of sale dated 02.07.2014. It is the case of the plaintiffs that the defendant agreed to sell the suit schedule property for a total sale consideration of Rs.15,50,000/- and received a sum of Rs.15,00,000/- as part consideration. Pursuant thereto, the defendant executed the agreement of sale on 02.07.2014. Despite repeated requests, the defendant failed to complete the transaction by receiving the balance amount of Rs.50,000/-. Consequently, the plaintiffs issued a legal notice calling upon the defendant to execute a registered sale deed upon receipt of the remaining consideration. The present suit is filed by the legal heirs of the original agreement holder, Chikkayya S/o Danayya Mathad, asserting that they have always been ready and willing to perform their part of the contract. The trial Court, noting the refusal report on service of summons (shara), proceeded to place the defendant ex parte.

4. In order to establish their claim, the plaintiffs examined Plaintiff No.5 as PW-1. Additionally, two other witnesses were examined as PWs-2 and 3. In total, four documents were produced in support of the plaintiffs’ case. Although the trial Court answered Issues Nos.1 and 2 in the affirmative, it declined to grant the discretionary relief of specific performance. Instead, the suit was decreed in part by directing refund of the part consideration amount of Rs.15,00,000/- with interest at the rate of 6% per annum.

5. The principal ground urged in the present appeal is that there was no proper service of summons on the defendant by the trial Court, rendering the judgment and decree unsustainable in law.

6. The learned counsel for the appellant has further contended that the entire