IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 432 of 2008()
1. RAMACHANDRAN,AGED 66, S/O.PAYI,
... Petitioner
2. VIJAYAKUMARI, AGED 57, D/O.PAYI, AND
3. USHA, AGED 41, D/O.PAYI, AND
4. OMANA, AGED 40 YRS,W/O.VENU,
5. SUNIL, S/O.VENU, PURANDEKKATTIL, -DO-
6. THANKAMANI, W/O.LATE BHASKARAN,
7. REGHU @ REGHUNATHAN, AGED 39, S/O.LATE
8. SUKU, AGED 30, S/O.LATE BHASKARAN,
9. SUDHA, AGED 34, D/O.LATE BHASKARAN,
10. KARTHYAYINI, AGED 57, W/O.LATE
11. BABU, AGED 36, MARASARI, S/O.LATE
12. BAIJU, AGED 33, MARASSARI, S/O.LATE
13. BABY, AGED 35, D/O.LATE RAMAKRISHNAN,
Vs
1. JANAKI, AGED 76, W/O.PARAMESWARAN,
... Respondent
2. SUBRAMANIAN, AGED 56, S/O.PARAMESWARAN,
3. RAJAN, GED 51, MARASSARI,
4. VISWAMBARAN, AGED 55, S/O.PARAMESWARAN,
5. VISALAKSHI, AGED 52, D/O.PARAMESWARAN,
6. REJALEKSHMI, AGED 49, D/O.PARAMESWARAN,
7. KESAVAN, AGED 76, S/O.PARAMESWARAN,
8. MALATHI, AGED 71, W/O.LATE KUTTAN,
9. MOHANAN, AGED 54, S/O.LATE KUTTAN,
10. JANARDHANAN, AGED 46, S/O.KUTTAN,
11. JAYAN, AGED 43, S/O.LATE KUTTAN,
12. SURENDRAN, AGED 40, S/O.LATE KUTTAN,
13. VALSALA, AGED 51, D/O.LATE KUTTAN,
14. SULOCHANA, AGED 71. W/O.UNNI,
15. HARIDAS, AGED 51, S/O.UNNI,
16. RETHI, AGED 48, D/O.UNNI, PURANDEKKATTIL
17. SATHI, AGED 46, D/O.UNNI,
18. JYOTHI, AGED 44, D/O.UNNI,
19. GOPI, AGED 55, S/O.PAYI,
20. BABU, AGED 53, SON OF PAYI,
For Petitioner :DR.V.N.SANKARJEE
For Respondent :SRI.P.SANTHOSH (PODUVAL)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/11/2009
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.No.432 of 2008B
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Dated this 30th day of November, 2009
JUDGMENT
This appeal is at the instance of defendant Nos.3, 5, 8 to 10 and
22 to 25 and the legal representatives of defendant No.4. The appeal
arises from a suit for partition. Trial court passed a preliminary decree
for partition. That was challenged by these appellants and defendant
No.4 in the Court of learned first Additional District Judge, Thrissur in
A.S.No.76 of 2006. In the meantime as per order on I.A.No.631 of
2006 learned Sub Judge passed final decree in the suit. First appellate
court taking note of that development held that the appeal against the
preliminary decree has become infractuous and accordingly dismissed
the same. That judgment and decree are under challenge in this
second appeal at the instance of the parties first above mentioned.
Learned counsel for appellant submit that the dismissal of the appeal
by the first appellate court for the reason that in the meantime final
decree has been passed is not legally correct and placed reliance on
the decision of this court in D.RaviKumar Vs. Elizabeth Mathew
(1994(2) KLJ 768).
2. It is seen from I.A.Nos.2780 of 2009 and 2781 of 2009 and
it is not disputed before me by counsel on both sides that respondent
No.3 died on 25-12-2006 even before the first appellate court disposed
of the appeal on 07-01-2008. While disposing of I.A.No.2780 of 2009
and 2781 of 2009 I stated that consequent to the death of respondent
No.3 while the appeal was pending in the first appellate court,
impleadment of the legal representatives cannot be ordered in this
second appeal. The reason is that the first appeal to the extent it
concerned respondent No.3 stands abated. The Supreme Court in
Shahazada Bi Vs. Halimabi (AIR 2004 SC 3942) has stated that
if the interest of co-defendants are separate, as in case of co-owners
(as in the present case) the suit will abate only as regards the interest
of the deceased defendant. Hence the judgment and decree of the
first appellate court as against others cannot be said to be a nullity. At
the same time to the extent it concerned respondent No.3, judgment
and decree of the first appellate court are a nullity in that the judgment
and decree were passed against a dead person. The proper course
therefore is to allow this second appeal, set aside the judgment and
decree of the first appellate court and remit the appeal to that Court
with opportunity for appellants to implead legal representatives of
respondent No.3 if they are so advised. The question whether in view
of the passing of final decree the appeal against preliminary decree
has become infractuous will be decided by the first appellate court at
the appropriate time taking into account the position of law in that
regard.
Resultantly the second appeal is allowed. Judgment and decree
under challenge are set aside and the case is remitted to the court of
learned First Additional District Judge, Thrissur for fresh disposal. It will
be open to the party concerned to seek impleadment of legal
representatives of respondent No.3 and if any such application is
preferred learned Additional District Judge shall dispose of the same as
provided under law and thereafter dispose of the appeal on merit. If
any application to condone delay in filing the appeal in the first
appellate court is pending, I make it clear that the appellate court has
to dispose of that application before admitting the appeal for hearing.
Execution of the final decree will stand adjourned for a period of one
month from today or till the first appellate court passes appropriate
orders regarding execution of the final decree, whichever is earlier.
Parties shall appear in the first appellate court on 23-12-2009. First
appellate court shall expedite the disposal of the applications if any
pending as well as the appeal. No cost.
THOMAS P JOSEPH,
JUDGE
Sbna/