JUDGMENT 1. - This appeal was earlier decided by this Court on 18.3.2002 by another learned Single Judge of this Court after hearing the counsel for the appellant and counsel for respondent No. 1. Since respondent Nos. 2 and 3 did not appear in the matter the said respondents were not heard, an application was filed under Order 9 Rule 13 of the Code of Civil Procedure for recalling of the said order dated 18.3.2002 and by a detailed judgment dated 10.7.2007, the earlier judgment dated 18.3.2002 was recalled and set aside, holding that respondent Nos. 2 and 3 were not served with the summons of the suit as well as in the present appeal and therefore, the judgment being ex parte against them, the application under Order 9 Rule 13 deserved to be allowed and the appeal was restored to be heard again on merits. 2. Learned counsel for the appellant Mr. Tlianvi reiterated those arguments and urged that this appeal may be decided on merits only as against the contention of learned counsel for respondent Nos. 2 and 3. Mr. Ramit Mehta that since defendant Nos. 2 and 3 did not have any opportunity to defend the suit filed by the plaintiff-appellant in the trial Court, the matter in fact deserves to be remitted back to the trial Court where defendant Nos. 2 and 3 will have opportunity to file their written statement and lead evidence and contest the suit. 3. It may be stated that the suit was filed by the plaintiff-appellant for specific performance in the trial Court for transfer of a land situated at plot No. 102 in village Suthla, Chopasani Road, Jodhpur for a consideration of Rs. 90,000/- under an agreement to sell dated 23.11.1993 executed by defendant No. 1 Smt. Harjot Kanwar. The said agreement is Ex.5 is on the record of the trial Court. Ex.4 is the notice given on behalf of defendant No. 1 Smt. Harjot Kanwar through counsel Shri Gordhan Singh Panwar dated 7.2.1994 whereby the plaintiff appellant Deendayal Warde was informed that under the agreement dated 23.11.1993 for the sum of Rs. 90,000/- the said Deendayal had given an advance of Rs. 5,100/- and on payment of the remaining amount of the agreement he was to get the sale-deed executed in his favour in the first week of January, 1994 following the agreement dated 23.11.1993. 90,000/- the said Deendayal had given an advance of Rs. 5,100/- and on payment of the remaining amount of the agreement he was to get the sale-deed executed in his favour in the first week of January, 1994 following the agreement dated 23.11.1993. But since he failed to pay balance amount and get the sale-deed executed, the defendant No. 1 on account of financial difficulties had to transfer the said property to other person and has already received consideration from such third party and has got the sale-deed executed in his favour. The suit in question was filed on 11.3.1994 4. The learned trial Court framed as many as eight issues in the suit and while deciding issue No. 1 in favour of the plaintiff Deendayal, namely, that the agreement was executed by the defendant on 23.11.1993 for the sum of Rs. 90,000/- to sell the said plot in question to the plaintiff, the issue Nos. 2, 3 and 4 were jointly decided by the trial Court against the plaintiff. In para 32 of the judgment dated 23.9.1997 the learned trial Court held that the. relief of specific performance by transfer of property could not be given to the plaintiff Deendayal in view of the fact that the property already stood sold by the defendant No. 1 to the defendant Nos. 2 and 3 who were bona fide purchasers and who had already constructed a residential house on the said plot spending money thereon. 5. Being aggrieved by the said findings on issue Nos. 2, 3 and 4 against the plaintiff, the plaintiff had approached this Court by way of first appeal which came to be allowed by an ex parte order dated 18.3.2002 against defendant Nos. 2 and 3 as aforesaid and this Court returned the findings on issue Nos. 2, 3 and 4 in favour of the plaintiff appellant and held that the decree of specific performance deserved to be granted in favour of the plaintiff appellant and accordingly said suit was decreed by this Court by allowing the appeal on 18.3.2002.However, since the aforesaid decree was ex parte against defendant Nos. 2 and 3. 2, 3 and 4 in favour of the plaintiff appellant and held that the decree of specific performance deserved to be granted in favour of the plaintiff appellant and accordingly said suit was decreed by this Court by allowing the appeal on 18.3.2002.However, since the aforesaid decree was ex parte against defendant Nos. 2 and 3. to whom the said property was sold by defendant No. 1, they filed an application under Order 9, Rule 13 of the Code of Civil Procedure before this Court for recalling of the order dated 18.3.2002 which came to be allowed by this Court on 10.07.2006 6. It would be appropriate to reproduce the relevant part of the judgment of this Court dated 10.7.2006 wherein the Court found that defendant Nos. 2 and 3 were not at all served in the matter and it was not a mere irregularity in the service of summons upon them but it was a case of no service on them - "According to the appellant, the service effected by publication of notice in S.B. Civil First appeal No. 59/1998 for respondent Nos. 2 and 3 (applicants) is no service in the eye of law. It is submitted that this is settled law that the notices are required to be served, personally as far as possible and for that purpose, all efforts should be made first. The substituted service cannot be equivalent to personal service unless before adopting said procedure, efforts are made to serve the process upon the respondents. In this case, once summons were issued and they returned unserved as address was wrong, upon which the Court passed the order to serve the notice upon the respondents applicants on their correct address. The Court also ordered to issue notices by ordinary course as well as by registered post but the appellant (non-applicant) deliberately did not submit the notices even for second time only, which in fact would have been for the first time on fresh addresses. Without making any effort, the appellant submitted application supported by affidavit mentioning therein that "service of respondent Nos. 2 and 3 despite various efforts have not been effected". This Court was made to believe that various efforts have been made to serve respondent Nos. 2 and 3 whereas in fact virtually no effort has been made to serve respondent Nos. Without making any effort, the appellant submitted application supported by affidavit mentioning therein that "service of respondent Nos. 2 and 3 despite various efforts have not been effected". This Court was made to believe that various efforts have been made to serve respondent Nos. 2 and 3 whereas in fact virtually no effort has been made to serve respondent Nos. 2 and 3 in the S.B. Civil Regular First Appeal No. 59/1998. It is also submitted that strangely the vendor (respondent No. 1) also did not oppose the said application of substituted service, therefore, very foundation for order for substituted service was not there. It is also submitted that the appellant took the same modus operandi before the trial Court or the trial Court did not apply its mind to the manner in which defendant Nos. 2 and 3 applicants were shown to have been served with the summons of the suit. Further even in execution of the decrees also the plaintiff adopted the same procedure so that applicants who were found bona fide purchasers of the property by the trial Court, even in expert decision, may not come to know about the passing of the decree and the decree holder get the said deed executed through Court." xxx xxx xxx "The respondent-plaintiff submitted reply to the application of the applicants filed under Order 9 Rule 13, C.P.C. According to non- applicant respondent No. 1, the suit was filed by plaintiff for specific performance of the contract against defendant No. 1-respondent alone as he was not knowing the fact of sale of the suit property by defendant No. 1 (respondent No. 1). When the plaintiff came to know about the sale in favour of defendant Nos. 2 and 3, he obtained the copy of the registered sale-deed and impleaded defendant Nos. 2 and 3 as party in the suit. According to the learned counsel for the non-applicant No. 1, the plaintiff that defendant Nos. 2 and 3 applicants avoided service before the trial Court as well as before this Court and even before the executing Court which is apparent from the record of the above files. 2 and 3 as party in the suit. According to the learned counsel for the non-applicant No. 1, the plaintiff that defendant Nos. 2 and 3 applicants avoided service before the trial Court as well as before this Court and even before the executing Court which is apparent from the record of the above files. It is also submitted that in the trial Court, summons was offered to one of the applicants and he refused to accept the summon of the suit, therefore, he had full knowledge of the suit proceedings and he knowingly did not appear before the trial Court. Summon of the another defendant- applicant was offered to his brother who refused to accept the summon of the suit and thereafter the trial proceeded and the suit was dismissed by the trial Court against which appellant preferred appeal. In the appeal, the appellant rightly submitted before this Court that the respondent-applicant did not appear before the trial Court and they are avoiding the service of the notice issued by this Court. After recording satisfaction, ordered for substituted service. It is also submitted that substituted service is also service as personal service and it cannot be taken lightly and the judgment and decree cannot be set aside merely on the ground that summons were not personally served upon defendants. It is also submitted that the sale in favour of applicants-defendants is completely void sale and by now, in execution of the decree passed by this Court dated 18.3.2002, the sale-deed has been executed through Court and registered in favour of the plaintiff. The appellant-non- applicant also denied any investment made by the applicants over the property in dispute. The non-applicant plaintiff also denied that the applicants came to know about the decree only when the employees of the registration department came to the premises on 20.3.2004. It is also submitted that the trial Court proceeded ex parte against Abdul Kayum when summon was offered to his brother who was residing with him, he refused to accept the summon and thereafter summon was' affixed on the house of Abdul Kayum and in the same manner, summon of Abbu Bakar applicant was also sent by the Court on his actual residence and correct address. Be it as it may be, according to the learned counsel for the respondents there was sufficient service as well as the applicants had full knowledge of the suit as well as this appeal." xxx xxx xxx "It appears that this Court believed the statement of the appellant that several efforts have been made to serve the applicants and that fact is absolutely wrong fact. Other facts mentioned in the application under Order 5 Rule 20 C.P.C. that the respondents No. 2 and 3 (applicants) are avoiding service of notices of appeal and "because of avoiding service by the respondents No. 2 and 3, the appeal is lingered on", are also absolutely wrong statement of facts. It appears that the Court was misled by the appellant and, therefore, the order of substituted service was passed by the Court. Therefore, this is no service in the eye of law and the decree passed by this Court by judgment and decree dated 18.3.2002 as liable to be set aside. I do not find any force in the submissions of the learned counsel for the respondent-plaintiff that this is case of irregularity in service of the summon and the decree cannot be set aside merely on the ground that there are irregularity in service of summons as held by-this Court in the case of M/s. Anand Thailee Bhandar v. Ganganagar Sugar Mills Ltd., 1989 (2) RLR 94 . The learned Counsel for the respondent-plaintiff cited the Judgment of the Madhya Pradesh High Court delivered in the case of Ramesh Chandra Rathore v. Union Bank of India, 2001 (1) CCC 42 (MP) but that was a case where that facts like the present case were not there. If the service is effected by publication of notice in the news-paper, by following procedure, the service is sufficient service, but where the service is not effected in accordance with law by publication of notice in news-paper and has been effected without making effort to serve the notices personally upon the defendant/respondent, the service can be challenged by the aggrieved party. In another judgment of this Court relied upon by the learned counsel for the respondent-plaintiff, delivered in the case of Ram Das & Anr. v. Mohan Lal & Ors., 1996 (3) Raj. In another judgment of this Court relied upon by the learned counsel for the respondent-plaintiff, delivered in the case of Ram Das & Anr. v. Mohan Lal & Ors., 1996 (3) Raj. 18 , this Court held that in the facts of the said case, the substituted service was the only recourse left open and, therefore, the Court after recording satisfaction, ordered substituted service and that service was considered proper, whereas it is clear from the facts of this case that the service upon the applicants-respondents was not service in the eye of law. At this place, it will be worthwhile to mention here that the applicants purchased the property by registered sale-deed and they are in possession of the suit property actually or through tenants. There appears no reason for there person as for not appearing in appeal, if they would have knowledge of the appeal. Therefore, also in the facts of the case, this Court believes that applicants had no knowledge of the pendency of the appeal and further there is no material on record to hold that the applicants had knowledge of the pendency of the appeal and mere word of mouth of plaintiff is application under Order 5 Rule 20, C.P.C. that respondents No. 2 and 3 had knowledge of the appeal cannot be believed because the appellant gave a wrong affidavit to obtain the order in support of the application under Order 5 Rule 20 C.P.C. Therefore, the application of the applicants filed under Order 9 Rule 13, C.P.C. is within period of limitation from the date of knowledge of decree to the applicants. It view of the above, the application under Order 9 Rule 13 is allowed and the judgment and decree passed by this Court in S.B. Civil First Appeal No. 59/1998 is set aside." 7. From the above it is clear that the defendant Nos. 2 and 3 did not have any opportunity to defend and contest the suit filed against them though they purchased the said property from the defendant No. 1 without any notice of pre- existing agreement to sell in favour of the plaintiff. Whether in the face of a registered sale-deed having been executed in their favour, the suit for specific performance regarding transfer of property to the plaintiff could have been decreed or not was required to be mainly contested by the defendant Nos. Whether in the face of a registered sale-deed having been executed in their favour, the suit for specific performance regarding transfer of property to the plaintiff could have been decreed or not was required to be mainly contested by the defendant Nos. 2 and 3 as the defendant No. 1 apparently lost interest in contesting the said suit. Therefore, proceeding ex parte against defendant Nos. 2 and 3 has resulted in serious miscarriage of justice. Though this Court partly retrieved that situation by recalling the judgment dated 18.3.2002 whereby reversing the findings on issue Nos. 2, 3 and 4 of the learned trial Court this Court gave decree for specific performance in favour of the plaintiff, however in the considered opinion of this Court, the matter in fact ought to have been remitted back to the trial Court for trial afresh after giving opportunity of defending the suit to the defendant Nos. 2 and 3. Since it has been clearly noticed by this Court in the order dated 10.7.2006 from the above quoted contention of plaintiff in reply to application under Order 9 Rule 13, that the said defendant Nos. 2 and 3 were not properly served with the summons of the suit by the learned trial Court also, findings of the learned trial Court on other issues as well as issue Nos. 2, 3 and 4 could have been arrived at only after allowing the defendant Nos. 2 and 3 to defend and contest the said suit. 8. In view of the above, this Court is not inclined to decide this appeal on merits at this stage and it is considered appropriate that the judgment of the learned trial Court dated 23.9.1997 is also set aside and the case is remanded back to the trial Court for fresh trial after the defendant Nos. 2 and 3 are allowed an opportunity to defend and contest the suit. A period of two months is allowed to the said defendant Nos. 2 and 3 to file written statement before the trial Court and from that stage onwards the suit may be tried in accordance with law. 2 and 3 are allowed an opportunity to defend and contest the suit. A period of two months is allowed to the said defendant Nos. 2 and 3 to file written statement before the trial Court and from that stage onwards the suit may be tried in accordance with law. The parties are directed to appear before the learned trial Court in the first instance in this regard on 25.3.2008 and thereafter the learned trial Court is expected to hold the trial in accordance with law expeditiously.With these observations this appeal is disposed of.No order as to costs.Appeal disposed of. *******