Smt. Sushila Devi v. Counsel for

1. Learned counsel for the appellant and learned counsel for the respondents are present.

2. The instant appeal under Order 43 Rule 1(d) C.P.C. has been filed by the applicant against the impugned order dated 08.07.2025 passed by the Court of Additional District Judge, Court No.20, Agra in Civil Misc. Case No.2 of 2025 arising out of Original Suit No.506 of 2014, Smt. Sushila Devi vs. Smt. Neha Devi and others, whereby applicant's application under Order 9 Rule 13 C.P.C., has been rejected.

3. Factual matrix giving rise to this appeal is that Smt. Neha Devi and others (plaintiffs) filed Original Suit No.506 of 2014 against Shree Krishna @ Shree Kishan (defendant) for the relief of specific performance of registered contract of sale dated 14.03.2012, which was decreed by the Court of Additional District Judge, Court No.11, Agra vide judgment and decree dated 23.01.2020 and, thereafter, the applicant, Smt. Sushila Devi filed Misc. Case No.2 of 2025 under Order 9 Rule 13 C.P.C. for setting aside the above decree on the ground that she was defendant no.1/6 in the original suit and was impleaded as legal heir of her deceased-father Shree Krishan, but the suit was decided ex-parte against her.

4. She further submitted that defendant no.1/4, Smt. Laxmi Devi died in the year 2018, but her heirs were not substituted. She further submitted that she was not having any knowledge of the original suit because neither any notice was served on her nor she refused to accept any notice. She further 2 FAFO No. 2320 of 2025 submitted that the endorsement of refusal was recorded in collusion with the postman because her relations with her brothers were not cordial, as such, she never knew about the pendency of the original suit. She further submitted that after the passing of the decree, she somehow became aware about the decree and then she had contacted her counsel, who advised her to file the application under Order 9 Rule 13 C.P.C. and then she had filed this application.

5. The above application was opposed by the plaintiffs, who submitted that the applicant was fully aware about the pendency of the suit but she deliberately did not appear. It was further submitted that the applicant was also aware about the execution case but still she did not appear before the executing court. It was further submitted by the plaintiff that the original defendant had executed a registered Will on 07.09.2013, in which, the applicant was not given any share in the disputed property and that Will was never challenged by the applicant before any court.

6. The trial court dismissed the applicant's application under Order 9 Rule 13 C.P.C. on the ground that the applicant was impleaded in the original suit as a legal heir of deceased-defendant. The trial court has recorded a specific finding that the summons sent to the applicant were refused to be accepted by her, as such, service was deemed sufficient on her and, thereafter, case was decided ex-parte against her. The trial court also concluded that since the applicant was one of the six children of deceased-defendant, as such, it was surprising that she was not aware of the original suit. The trial court also recorded a finding that the applicant has not specified, on which date, she became aware of the passing of the decree in the original suit and from, which person, she got that knowledge. The trial court further recorded a finding that in Execution Case No.225 of 2021, registered notices were sent to the applicant, which were also served on her and this fact was not rebutted by the applicant by adducing evidence before the trial court.

7. In view of the above findings, the trial court has dismissed the applicant's application under Order 9 Rule 13 C.P.C., aggrieved against which, the applicant has filed the instant appeal before this Court.

8. Learned counsel for the applicant submitted that the impugned order of the trial court is erroneous because the applicant was never served with any 3 FAFO No. 2320 of 2025 notice by the court, the applicant never refused to accept any notice, as such, the finding recorded by the trial court is perverse, which is liable to be set aside.

9. Learned counsel submitted that the applicant is having independent right and 1/6th share in the property because it was an ancestral property and as such, the applicant's father could not have executed an agreement to sell in favour of the plaintiff, which was illegal and on account of that, no right is conferred on the plaintiffs to file a suit for specific performance of the contract of sale.

10. Learned counsel submitted that since vital interests of the applicant are vested in the disputed property, as such, the appeal be admitted and heard on merits.

11. Per contra, learned counsel for the plaintiffs submitted that the applicant was well aware of the proceedings of the suit as well as execution, but she deliberately did not appear before the Court.

12. Learned counsel further submitted that the disputed property, was the self acquired property of the deceased-defendant in which the applicant was not having any individual right, as such, the applicant is bound by the decree of specific performance passed by the trial court in the original suit.

13. Learned counsel further submitted that the executing court has already satisfied the decree by executing the sale deed of the disputed property in favour of the plaintiffs, as such, the appeal filed by the applicant has become infructuous.

14. With these submissions, it was prayed that the appeal is meritless and be dismissed at the admission stage.

15. I have heard the learned counsel for both the parties and perused the record.

16. It is apparent that the applicant is claiming that she had no knowledge of the original suit because no notice was ever served on her, and she never refused to accept any summon sent by the court. 4 FAFO No. 2320 of 2025

17. Second proviso of Order 9 Rule 13 of the Civil Procedure Code, 1908, reads as follows:- "Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim."

18. It is apparent from the application under Order 9 Rule 13 C.P.C. that the applicant has not averred that she was having any independent right in the disputed property or the disputed property was ancestral, in which her father was not having absolute interest. No documentary proof has been submitted by the applicant to prima facie prove any individual right in the disputed property.

19. It is apparent that the applicant was impleaded as a legal heir of her deceased-father during the dependency of the suit, and as such, she was bound by the decree passed in that original suit.

20. It is also apparent that her three brothers and two sisters were also impleaded as legal heirs of the deceased-defendant in the original suit, but no such plea was taken by them in their written statement submitted in the original suit. In fact, the three brothers claimed that a registered Will deed dated 07.09.2013 was executed by their father in their favour. It was never pleaded by the other legal heirs that the disputed property was ancestral in which the deceased-defendant was not having any title or they had independent title in that property. It is well settled that now at this stage one of the heir cannot set-up a plea that her father was not having absolute interest in the disputed property and she was a coparcener with her father in the disputed property.

21. Even otherwise, no such documentary proof has been submitted by the applicant in this appeal and this plea was never raised by her in her application under Order 9 rule 13 C.P.C., as such, the plea raised at this stage is barred by principle of constructive resjudicata.

22. It is also apparent that the decree passed in O.S. No. 506 of 2014 has been executed in Execution Case No. 225 of 2021 and the sale deed of the 5 FAFO No. 2320 of 2025 disputed property has been executed by the court in favour of the plaintiffs decree-holders as such, this appeal has also become infructuous on this ground.

23. In view of the above facts, this appeal is meritless and is dismissed at the admission stage under order 41 Rule 11 C.P.C.

24. The impugned order of the trial court dated 08.07.2025 is affirmed.

25. Costs easy. October 7, 2025 Mayank (Sandeep Jain,J.) MAYANK KUMAR SHARMA High Court of Judicature at Allahabad

1. Learned counsel for the appellant and learned counsel for the respondents are present.

2. The instant appeal under Order 43 Rule 1(d) C.P.C. has been filed by the applicant against the impugned order dated 08.07.2025 passed by the Court of Additional District Judge, Court No.20, Agra in Civil Misc. Case No.2 of 2025 arising out of Original Suit No.506 of 2014, Smt. Sushila Devi vs. Smt. Neha Devi and others, whereby applicant's application under Order 9 Rule 13 C.P.C., has been rejected.

3. Factual matrix giving rise to this appeal is that Smt. Neha Devi and others (plaintiffs) filed Original Suit No.506 of 2014 against Shree Krishna @ Shree Kishan (defendant) for the relief of specific performance of registered contract of sale dated 14.03.2012, which was decreed by the Court of Additional District Judge, Court No.11, Agra vide judgment and decree dated 23.01.2020 and, thereafter, the applicant, Smt. Sushila Devi filed Misc. Case No.2 of 2025 under Order 9 Rule 13 C.P.C. for setting aside the above decree on the ground that she was defendant no.1/6 in the original suit and was impleaded as legal heir of her deceased-father Shree Krishan, but the suit was decided ex-parte against her.

4. She further submitted that defendant no.1/4, Smt. Laxmi Devi died in the year 2018, but her heirs were not substituted. She further submitted that she was not having any knowledge of the original suit because neither any notice was served on her nor she refused to accept any notice. She further 2 FAFO No. 2320 of 2025 submitted that the endorsement of refusal was recorded in collusion with the postman because her relations with her brothers were not cordial, as such, she never knew about the pendency of the original suit. She further submitted that after the passing of the decree, she somehow became aware about the decree and then she had contacted her counsel, who advised her to file the application under Order 9 Rule 13 C.P.C. and then she had filed this application.

5. The above application was opposed by the plaintiffs, who submitted that the applicant was fully aware about the pendency of the suit but she deliberately did not appear. It was further submitted that the applicant was also aware about the execution case but still she did not appear before the executing court. It was further submitted by the plaintiff that the original defendant had executed a registered Will on 07.09.2013, in which, the applicant was not given any share in the disputed property and that Will was never challenged by the applicant before any court.

6. The trial court dismissed the applicant's application under Order 9 Rule 13 C.P.C. on the ground that the applicant was impleaded in the original suit as a legal heir of deceased-defendant. The trial court has recorded a specific finding that the summons sent to the applicant were refused to be accepted by her, as such, service was deemed sufficient on her and, thereafter, case was decided ex-parte against her. The trial court also concluded that since the applicant was one of the six children of deceased-defendant, as such, it was surprising that she was not aware of the original suit. The trial court also recorded a finding that the applicant has not specified, on which date, she became aware of the passing of the decree in the original suit and from, which person, she got that knowledge. The trial court further recorded a finding that in Execution Case No.225 of 2021, registered notices were sent to the applicant, which were also served on her and this fact was not rebutted by the applicant by adducing evidence before the trial court.

7. In view of the above findings, the trial court has dismissed the applicant's application under Order 9 Rule 13 C.P.C., aggrieved against which, the applicant has filed the instant appeal before this Court.

8. Learned counsel for the applicant submitted that the impugned order of the trial court is erroneous because the applicant was never served with any 3 FAFO No. 2320 of 2025 notice by the court, the applicant never refused to accept any notice, as such, the finding recorded by the trial court is perverse, which is liable to be set aside.

9. Learned counsel submitted that the applicant is having independent right and 1/6th share in the property because it was an ancestral property and as such, the applicant's father could not have executed an agreement to sell in favour of the plaintiff, which was illegal and on account of that, no right is conferred on the plaintiffs to file a suit for specific performance of the contract of sale.

10. Learned counsel submitted that since vital interests of the applicant are vested in the disputed property, as such, the appeal be admitted and heard on merits.

11. Per contra, learned counsel for the plaintiffs submitted that the applicant was well aware of the proceedings of the suit as well as execution, but she deliberately did not appear before the Court.

12. Learned counsel further submitted that the disputed property, was the self acquired property of the deceased-defendant in which the applicant was not having any individual right, as such, the applicant is bound by the decree of specific performance passed by the trial court in the original suit.

13. Learned counsel further submitted that the executing court has already satisfied the decree by executing the sale deed of the disputed property in favour of the plaintiffs, as such, the appeal filed by the applicant has become infructuous.

14. With these submissions, it was prayed that the appeal is meritless and be dismissed at the admission stage.

15. I have heard the learned counsel for both the parties and perused the record.

16. It is apparent that the applicant is claiming that she had no knowledge of the original suit because no notice was ever served on her, and she never refused to accept any summon sent by the court. 4 FAFO No. 2320 of 2025

17. Second proviso of Order 9 Rule 13 of the Civil Procedure Code, 1908, reads as follows:- "Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim."

18. It is apparent from the application under Order 9 Rule 13 C.P.C. that the applicant has not averred that she was having any independent right in the disputed property or the disputed property was ancestral, in which her father was not having absolute interest. No documentary proof has been submitted by the applicant to prima facie prove any individual right in the disputed property.

19. It is apparent that the applicant was impleaded as a legal heir of her deceased-father during the dependency of the suit, and as such, she was bound by the decree passed in that original suit.

20. It is also apparent that her three brothers and two sisters were also impleaded as legal heirs of the deceased-defendant in the original suit, but no such plea was taken by them in their written statement submitted in the original suit. In fact, the three brothers claimed that a registered Will deed dated 07.09.2013 was executed by their father in their favour. It was never pleaded by the other legal heirs that the disputed property was ancestral in which the deceased-defendant was not having any title or they had independent title in that property. It is well settled that now at this stage one of the heir cannot set-up a plea that her father was not having absolute interest in the disputed property and she was a coparcener with her father in the disputed property.

21. Even otherwise, no such documentary proof has been submitted by the applicant in this appeal and this plea was never raised by her in her application under Order 9 rule 13 C.P.C., as such, the plea raised at this stage is barred by principle of constructive resjudicata.

22. It is also apparent that the decree passed in O.S. No. 506 of 2014 has been executed in Execution Case No. 225 of 2021 and the sale deed of the 5 FAFO No. 2320 of 2025 disputed property has been executed by the court in favour of the plaintiffs decree-holders as such, this appeal has also become infructuous on this ground.

23. In view of the above facts, this appeal is meritless and is dismissed at the admission stage under order 41 Rule 11 C.P.C.

24. The impugned order of the trial court dated 08.07.2025 is affirmed.

25. Costs easy. October 7, 2025 Mayank (Sandeep Jain,J.) MAYANK KUMAR SHARMA High Court of Judicature at Allahabad