[2025:RJ-JP:23113] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Revision Petition No. 281/2019 Bhori Lal Alias Bhanwar Lal Son Of Shri Ganga Ram, Aged About 71 Years, Resident Of Village Chak Harbanspura, Tehsil Sanganer, District Jaipur (Rajasthan) ----Petitioner Versus 1. Suwa Devi Daughter Of Late Shri Jagdish, Wife Of Shri Lalaram Mali, Resident Of Village Chak Harbanspura, Tehsil Sanganer, District Jaipur At Present Residing At Village Dagrathal, Tehsil Newai, District Tonk 2. Smt Gajanandi, Wife Of Late Shri Jagdish, Residents Of Village Manoharpura, Tehsil Newai, District Tonk At Present Residing At Simliya Road, Village Vatika, Tehsil Sanganer, District Jaipur 3. Girdhari, Son Of Late Shri Jagdish, Residents Of Village Manoharpura, Tehsil Newai, District Tonk At Present Residing At Simliya Road, Village Vatika, Tehsil Sanganer, District Jaipur 4. Ramesh, Son Of Late Shri Jagdish, Minor Through Natural Mother Smt Gajanandi Devi, Residents Of Village Manoharpura, Tehsil Newai, District Tonk At Present Residing At Simliya Road, Village Vatika, Tehsil Sanganer, District Jaipur 5. Meera Devi, Daughter Of Late Shri Jagdish, Wife Of Shri Shankar Lal Residents Of Village Dagrathal, Tehsil Newai, District Tonk 6. Chota Devi, Daughter Of Late Shri Jagdish, Wife Of Shri Kaluram, Residents Of Village Dagrathal, Tehsil Newai, District Tonk 7. Gulab Devi, Daughter Of Late Shri Jagdish, Wife Of Shri Babulal, Residents Of Village Dagrathal, Tehsil Newai, District Tonk 8. Bugli, Daughter Of Late Shri Jagdish, Wife Of Shri Pooran, Resident Of Village Harsuliya, Tehsil Phagi, District Jaipur 9. Nanchi, Daughter Of Late Shri Jagdish, Wife Of Shri Suresh, Resident Of Village Mandaliya, Tehsil Phagi, District Jaipur [2025:RJ-JP:23113] (2 of 11) [CR-281/2019] 10. Manju, Daughter Of Late Shri Jagdish, Minor Through Natural Mother Smt Gajanandi Devi, Wife Of Late Shri Jagdish, Resident Of Village Manoharpura, Tehsil Newai, District Tonk At Present Residing At Simliya Road, Village Vatika, Tehsil Sanganer, District Jaipur ----Respondents Connected With S.B. Civil Revision Petition No. 282/2019 Bhori Lal Alias Bhanwar Lal Son Of Shri Ganga Ram, Aged About 71 Years, Resident Of Village Chak Harbanspura, Tehsil Sanganer, District Jaipur (Rajasthan) ----Petitioner Versus 1. Gulab Devi Daughter Of Late Shri Jagdish, Wife Of Shri Babulal Mali, Resident Of Village Dagrathal, Tehsil Newai, District Tonk 2. Smt Gajanandi, Wife Of Late Shri Jagdish, Residents Of Village Manoharpura, Tehsil Newai, District Tonk At Present Residing At Simliya Road, Village Vatika, Tehsil Sanganer, District Jaipur 3. Girdhari, Son Of Late Shri Jagdish, Residents Of Village Manoharpura, Tehsil Newai, District Tonk At Present Residing At Simliya Road, Village Vatika, Tehsil Sanganer, District Jaipur 4. Ramesh, Son Of Late Shri Jagdish, Minor Through Natural Mother Smt Gajanandi Devi, Residents Of Village Manoharpura, Tehsil Newai, District Tonk At Present Residing At Simliya Road, Village Vatika, Tehsil Sanganer, District Jaipur 5. Meera Devi, Daughter Of Late Shri Jagdish, Wife Of Shri Shankar Lal, Residents Of Village Dagrathal, Tehsil Newai, District Tonk 6. Chota Devi, Daughter Of Late Shri Jagdish, Wife Of Shri Kaluram, Residents Of Village Dagrathal, Tehsil Newai, District Tonk 7. Suwa Devi Daughter Of Late Shri Jagdish, Wife Of Shri Lalaram Residents Of Village Dagrathal, Tehsil Newai, District Tonk [2025:RJ-JP:23113] (3 of 11) [CR-281/2019] 8. Bugli, Daughter Of Late Shri Jagdish, Wife Of Shri Pooran,, Resident Of Village Harsuliya, Tehsil Phagi, District Jaipur 9. Nanchi, Daughter Of Late Shri Jagdish, Wife Of Shri Suresh Resident Of Village Mandaliya, Tehsil Phagi, District Jaipur 10. Manju, Daughter Of Late Shri Jagdish, Minor Through Natural Mother Smt Gajanandi Devi, Wife Of Late Shri Jagdish Resident Of Village Manoharpura, Tehsil Newai, District Tonk At Present Residing At Simliya Road, Village Vatika, Tehsil Sanganer, District Jaipur ----Respondents For Petitioner(s) : Mr. Rakesh Kumar For Respondent(s) : Mr. R.K. Daga with Mr. Rahul Singh Chauhan & Mr. Pankaj Soni Mr. Mamoon Khalid HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 28/05/2025 1. These two civil revision petitions were preferred by petitioners-plaintiff aggrieved from a common order dated 27.09.2019 in two civil misc. applications No. 234/2014 titled as ‘Gulab Devi Vs. Bhori Lal’ and 25/2014 titled as ‘SuwaDevi Vs. Bhori Lal’ under Order IX Rule 13 of CPC, passed by learned Additional District Judge No.19, Jaipur Metro, Headquarter Sanganer, whereby judgment and decree dated 24.10.2013 in civil suit No. 32/2013 titled as Bhori Lal Vs. Gajanandi & Ors. was set aside and civil suit was re-registered for trial. [2025:RJ-JP:23113] (4 of 11) [CR-281/2019] 2. Learned counsel for the petitioner-plaintiff while relying upon grounds of revision petition submitted that plaintiff-Bhori Lal has filed a civil suit before learned Additional District Judge for specific performance and permanent injunction, wherein notices were issued to all defendants. He further submitted that Suwa Devi was arrayed as defendant No.4, whereas Gulab Devi as defendant No.7 and both were served notices in accordance with Order V of CPC. He further submitted that defendant No.4 Suwa Devi remained absent after service of notice and the trial court has proceeded ex parte against her whereas respondent No.7 Gulab Devi has filed an affidavit and adopted written statement filed by defendant No.1-Gajanandi. He also submitted that on basis of admission under Order XII Rule 6 CPC, the suit was decreed by the Trial Court. He further submitted that after passing of decree on 24.10.2013, an application was filed after several months under Order IX Rule 13, read with section 151 CPC by Suwa Devi for setting aside the ex parte decree on the ground that the notice of civil suit was not served upon her on 24.01.2013, as no one has visited the place of residence of applicant-defendant. He further submitted that thereafter another application under Order IX Rule 13 CPC was filed by Gulab Devi on the ground that she has not appointed any counsel as she has not received any notice. He further submitted that both these applications were considered together and without any reasonable and sufficient ground delay was condoned by the trial court. He also submitted that the trial court, without considering the fact that no other defendant has raised any objection about non-service of notice, considered the facts beyond the record and set aside the judgment and decree [2025:RJ-JP:23113] (5 of 11) [CR-281/2019] passed under Order XII Rule 6 of CPC. He also submitted that the trial court has not only set aside the judgment and decree against these two non-petitioners applicants but also against all defendants which is contrary to settled proposition of law. 3. He further placed reliance upon judgment in case of Vasant Jaiwantrao Mahajan Vs. Tukaram Mahadhaji Patil (1960) 62 BOMLR 722 and submitted that under Order IX Rule 13 CPC, a decree can be set aside against all defendant(s), if decree is of such a nature that it cannot be set aside against one defendant only. He further submitted that in the instant case, it is not necessary to set aside the decree against all the defendants as decree is separable. He further the referred the judgment in case of Raj Kumar Vs. Kishenlal (1953) RLW Raj. 524 and submitted that in a suit for specific performance decree is not required to be set aside against all defendant(s) under Order IX Rule 13 of CPC. At last, he submitted that out of 10 defendant(s) only two has resisted and challenged agreement to sell but remaining 8 have already executed sale deed in pursuace of judgment and decree, therefore, it is not a worthwhile to set aside the decree against eight defendants who accepted the judgment and decree. 4. Aforesaid contentions were opposed by learned counsel for respondents-applicants, Gulab Devi and Suwa Devi and submitted that in a suit for specific performance, a cause of action cannot be divisible and when a cause of action cannot be splitted, then a decree is required to be set aside as a whole. He further submitted that the facts of the case clearly indicate that neither Suwa Devi nor Guddi Devi were residing on given address and plaintiff in [2025:RJ-JP:23113] (6 of 11) [CR-281/2019] connivance with respondent No.1 has got served the notice of Gulab Devi and Suwa Devi on the address of defendant No.1. He further referred the facts and submitted that ex parte decree was contested by Gulab Devi and Suwa Devi, and when a decree cannot sustain then it has to be set aside as a whole. He further referred the judgment in case of Mahesh Yadav and Anr. Vs. Rajeshwar Singh and Ors. (2009) 2 SCC 205 and submitted that under the proviso to Rule XIII of Order 9, the Court has power to set aside the entire ex parte decree against all defendant(s). He also submitted that even in case of Bank of India Vs. Mehta Brothers and Ors. (2008) 13 SCC 466, Hon’ble Supreme Court has held that on facts there is indivisible decree then same has to be set aside as a whole. He further referred the judgment in case of M.V.S. Manikayala Rao Vs. M. Narasimhaswami and Ors. 1965 SCC Online SC 21 and submitted that when the defendant Gulab Devi and Suwa Devi were not served notice at all, then the provision of limitation is applicable from date of knowledge and merely on technicality, a party cannot be thrown out of the Court. He also referred the judgment in case of Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Ors. (1953) S SCC 265 and submitted that under the Mitakshara law, no coparcener can alienate any portion even for valuable consideration, his undivided interest in the joint property without the consent of other coparceners. He also referred the judgment in case of Ramdas Vs. Sitabai and Ors. (2009) 7 SCC 444 and submitted that in case of undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless [2025:RJ-JP:23113] (7 of 11) [CR-281/2019] the property is partitioned by metes and bounds amicably or through mutual settlement or by a decree of the Court. He also referred judgment in case of S.K. Golam Lalchand Vs. Nandu Lal Shaw @ Nand Lal Keshri @ Bndu Lal Bayes and Ors. 2024 SCC Online SC 2456 and submitted that petitioner has no right to seek possession on the ground that eight defendants have registered a sale deed in compliance of the decree unless the properties is divided and their specific area is demarcated. At last, he referred the judgment in case of Nallam Seem Mahalaskhmi Vs. Talari Vijayalakshmi 2005 0 Supreme (AP) 374 and submitted that in a suit for specific performance, the granting of decree for specific performance is a discretion vested in the court and on record, it has to be established that the court has exercised discretion in accordance with law. 5. Heard learned counsels for the parties and perused the record. Also considered the judgments as referred by learned counsels for the parties. 6. The brief facts of the case are that plaintiff-Bhori Lal has filed a civil suit on the ground that husband of defendant No.1 and father of defendant Nos. 2 to 10, Shri Jagdish has entered into an agreement to sale on 10.02.2009 after receiving ₹40 lakhs. After the agreement to sale, Jagdish has expired on 24.02.2010 and a suit for specific performance is filed against the legal heirs of Jagdish. Defendant No.1 has filed a written statement admitting the facts narrated in the plaint and same was also admitted by defendant Nos. 6 to 8 and 9. Defendant No. 3 and 10 were minor and Mr. Maqbool was appointed as Court Guardian. Defendant [2025:RJ-JP:23113] (8 of 11) [CR-281/2019] Nos. 4 and 5 remained absent despite service. The trial court has passed a decree under Order XII Rule 6 of CPC. 7. On an application filed under order IX Rule 13 by Suwa Devi on 29.03.2014 and Guddi Devi on 27.11.2014, the trial court has set aside the judgment and decree dated 24.10.2013 as a whole. The main contention against the impugned order to set aside judgment and decree dated 24.10.2013 is that 8 out of 10 defendants have already executed a sale deed in favor of plaintiff and only two defendant(s) who preferred applications under Order IX rule 13 CPC have not executed sale deed in favor of plaintiff. Admittedly, 8 out of 10 defendants (judgment debtors) have executed a sale deed in favor of plaintiff, but a decree has been set aside as a whole on an application filed by two of the defendant(s). 8. Herein, this case a title of the plaint clearly indicate that Suwa Devi and Gulab Devi, both were married females, but the address of all defendants from 1 to 10 is shown as Village Chak Harbanspura, Tehsil Sanganer, District Jaipur at present Village Manoharpura, Tehsil Niwai, District Tonk. A perusal of address of Suwa Devi indicate that she is residing at Gram Panchayat, Dagrathal, Tehsil Niwai, District Tonk, whereas Gulab Devi is also residing at village Dagrathal, Tehsil Niwai, District Tonk. The address of defendant Nos. 1 and defendant Nos. 4 and 7 is apparently different. The trial court has considered service of notice, in light of discrepancies in service and considered in detail about non-service of notice upon defendants Nos. 4 and 7. It indicate that the notice was not served properly upon defendant Nos. 4 and 7. I agree with the conclusion drawn by the trial court [2025:RJ-JP:23113] (9 of 11) [CR-281/2019] about non-service of notice upon defendant Nos. 4 and 7, on given address. 9. Now, comes the question whether a decree can be passed under Order XII Rule 6 of CPC or not. Order XII Rule 6 CPC provides for judgment on admission. Herein, this case two defendants remained ex-parte, whereas two were minors and a Court guardian was appointed. Out of remaining six defendants, only defendant No.1 has filed a written statement admitting the facts of the plaint whereas remaining five have adopted the written statement filed by defendant No.1. There is no signature of defendant No.7 Gulab Devi on any of pleading filed before the trial court. The only evidence available on record is of PW-1 Bhori Lal. 10. Admittedly, a decree for specific performance can be passed only when the court is satisfied and the relief is discretionary, but the discretion should be exercised after taking all care and precaution. Herein, this case, it appears that while passing the decree the trial court has even noticed the consent of two minor children for whom a Court guardian has been appointed. This consent was also noticed in respect of two defendant(s) who remained ex parte. In case of Vasant Jaiwantrao Mahajan Vs. Tukaram Mahadhaji Patil (supra), a Coordinate Bench of this Bombay High Court while considering the proviso of Order IX Rule 13 CPC has laid down that it is not necessary to set aside decree as a whole when it is divisible. Similarly, in case of Raj Kumar Vs. Kishenlal (supra) a Division Bench of this Court while considering decree in a suit for specific performance has held that it is not necessary to set aside the judgment as a whole. [2025:RJ-JP:23113] (10 of 11) [CR-281/2019] 11. The cases referred by learned counsel for respondent, Hon’ble Supreme Court has considered the provision of Order IX Rule 13 CPC and also relating to Hindu Law and specifically laid down that when decree is indivisible and relating to a joint family property, then decree has to be set aside as a whole. 12. Having considered the material on record, I am of the considered view that Order IX Rule 13 of CPC provides for setting aside of judgment in toto in case when the circumstances speaks about the passing of decree. Therefore, the trial court has not committed any error while allowing application under Order IX Rule 13 of CPC and setting aside the judgment and decree dated 24.10.2013 in civil suit No. 32/13. 13. As regards to execution of sale deed by 8 persons is concerned, it is not necessary that all 10 defendants may participate in further proceedings of the suit, if some of the defendant(s) admitted the facts of the case and executed a sale deed, then a sale deed executed by them is a valid document and it gives full right as owner to petitioner (plaintiff). The only dispute remains is related to possession of the property and same has to be decided in accordance with law. 14. Learned counsel for respondent has referred certain judgments of Hon’ble Supreme Court wherein it was held that a coparcener cannot sale and alienate the possession until a partition has taken place between them. Whatever be the legal position, the plaintiff is free to take steps but we cannot travel beyond the scope of the revision petition. [2025:RJ-JP:23113] (11 of 11) [CR-281/2019] 15. In view of discussions made hereinabove, no case is made out for interference in the impugned order passed by learned Trial Court under order IX Rule 13 CPC. 16. In view of discussions made herein above, both the civil revision petition Nos. 281/19 and 282/19 are hereby dismissed along with pending application, if any. 17. No order as to costs. (ASHOK KUMAR JAIN),J MONU /79-80-S