IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 504 of 2006()
1. PARAVATHY ANTHARJANAM,
... Petitioner
2. UNNIYAMMA @ MEENAKUMARI ANTHARJANAM,
Vs
1. PALLIPPURATHILLATH KESAVAN NAMBOODIRI,
... Respondent
2. KOUMUDI ANTHARJANAM, AGED 58 YEARS,
3. PALLIPPURATHILLATH UNNIMAYA @ MANJULA,
4. UMASHANKER, AGED 35 YEARS,
5. RANJINI, AGED 30 YEARS,
6. DEVAKI ANTHARJANAM, AGED 82 YEARS,
7. UNNIMYA @ THANKAMANI ANTHERJANAM,
For Petitioner :SRI.E.NARAYANAN
For Respondent :SRI.P.V.KUNHIKRISHNAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/10/2006
O R D E R
V. RAMKUMAR, J.
* * * * * * * * * * * * * * * * * *
R.S.A NO. 504 OF 2006
* * * * * * * * * * * * * * * * * *
Dated, this the 18th day of October 2006
JUDGMENT
In view of the dismissal of C.M. Application 362/06 for condoning the
delay of 16 days in filing the appeal, this appeal is also dismissed as time-
barred.
V.RAMKUMAR, JUDGE.
C.M. APPLICATION 362/06 IN
R.S.A NO. 504 OF 2006
V. RAMKUMAR, J.
* * * * * * * * * * * * * * * * * *
R.S.A NO. 504 OF 2006
* * * * * * * * * * * * * * * * * *
Dated, this the 18th
day of October 2006
JUDGMENT
C.M. APPLICATION 362/06 IN
R.S.A NO. 504 OF 2006
V. RAMKUMAR, J.
* * * * * * * * * * * * * * * * * *
C.M. APPLICATION 362/06
IN
R.S.A NO. 504 OF 2006
* * * * * * * * * * * * * * * * * *
Dated, this the 18th day of October 2006
ORDER
The plaintiffs in O.S. 487/1994 on the file of the Sub court, Kozhikode
are the appellants in the above Second Appeal. The said suit was one for
partition and separate possession of their share over the plaint schedule
properties. The suit was resisted by the contesting defendants. The trial court
as per judgment and decree dated 18-08-1999 dismissed the suit. Aggrieved by
the dismissal of the suit, the petitioners preferred an appeal as A.S. 9/2005
before the District Court, Kozhikode with a delay of 4 years and 284 days. As
per I.A. 27/05 they sought condonation of the said delay. The said application
was vehemently opposed and the lower appellate court dismissed the
application to condone the delay, after taking evidence and consequently,
dismissed the appeal as time barred.
2. It appears that during the pendency of I.A. 17/05 the 17th
respondent therein who was the 17th defendant in the suit had died on 28-2-
2005. The petitioners claim to have filed I.A. 1466/05 and 1469/05 for setting
C.M. APPLICATION 362/06 IN
R.S.A NO. 504 OF 2006
aside the abatement and for impleading the legal representatives of deceased
17th respondent. It is alleged that no orders were passed on the said
applications and finally the lower appellate court as per Order dated 23-12-1005
dismissed the application to condone the delay and consequently the appeal
also dismissed as time barred. The above Second Appeal was also filed with a
petition to condone the delay. Service is not complete on the delay petition.
When the matter came up for hearing today, the learned counsel for the
petitioners submitted that the legal representatives of deceased 17th respondent
was shown as additional respondents in the appeal and the Registry objected
to the same on the ground that the legal representatives of the 17th respondents
had not been impleaded in the lower court and the order of the Court below on
the delay petition as well as the decree show the 17th respondent as alive. It
was brought to the notice of this Court that the 17th respondent had already died
on 28-2-2005 long before the delay petition in the appeal filed before the lower
appellate court was disposed of. The petitioners have filed I.A. Nos. 2127/06 for
impleading the legal heirs of 17th respondent and I.A. 2127/06 for setting aside
the abatement and C.M.A. 631/06 to condone the delay in filing I.A. 2126/06.
Since the 17th respondent had already dead long before the disposal of the
appeal by the lower appellate court and the decree was also passed against a
dead person, there is no question of the legal representatives of the 17th
respondent being impleaded in the above Second appeal which itself is not
C.M. APPLICATION 362/06 IN
R.S.A NO. 504 OF 2006
maintainable. However, since this C.M.Application itself is preferred against a
dead person, this petition is dismissed as not maintainable but not on merits.
It is made clear that the dismissal of this petition is without prejudice to the
rights, if any, of the petitioners to seek restoration of the appeal (A.S. 9/2005)
before the Court below for the purpose of impleading the legal representatives of
the deceased 17th respondent after getting the abatement set aside and delay, if
any, condoned in the light of the decision of this Court in 1976 KLT 101.
V. RAMKUMAR,
(JUDGE)
ani.