IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 677 of 2008(E)
1. LALITHA BAI, LAKSHMI VIHAR, DIED,
... Petitioner
2. AJITHA KUMARI, D/O.LALITHA BAI,
3. ANITHA KUMARI, D/O.LALITHA BAI,
4. AJITH KUMAR, S/O.LALITHA BAI,DO.DO.
Vs
1. P.RETNAMMA, D/O.B.PADMAKSHY
... Respondent
2. P.SARA, D/O.PADMAKSHY,( DIED)
3. P.GOPALAKRISHNAN, SAROVARAM,
4. G.S.JAYASREE, D/O.GOPALAKRISHNAN,
5. G.S.MANI, D/O.GOPALAKRISHNAN, ALAKAPURI,
6. KANAKAM NATARAJAN, LEKSHMI VIHAR
7. N.LATHIKA, W/O.M.VAMADEVAN,
8. T.V.UNNIKRISHNAN, LEKSHMY BHAVAN
9. LEKSHMY, D/O.M.VAMADAVAN (MINOR)
For Petitioner :SRI.M.R.ANANDAKUTTAN
For Respondent :SRI.R.S.KALKURA(CAVEATOR)
The Hon'ble MR. Justice V.RAMKUMAR
Dated :20/11/2008
O R D E R
V.RAMKUMAR,J.
...................................................
R.S.A. No. 677 of 2008
...................................................
DATED: 21-11-2008
JUDGMENT
The legal representatives of the deceased first defendant in
O.S. 620 of 1989 on the file of the Addl. Munsiff’s Court,
Thiruvananthapuram are the appellants in this Second Appeal.
The said suit was filed by the deceased first plaintiff and
respondents 2 and 3 herein seeking declaration of title,
recovery of possession and also fixation of boundary in respect of
the plaint schedule property. On 17-11-1999 the suit was
dismissed after a contest. Aggrieved by the judgment and
decree passed by the trial court, the Additional plaintiffs filed an
appeal before the District Court, Thiruvananthapuram, as A.S.
No. 96 of 2000. Pending the appeal, the first appellant herein
who was the first respondent therein (who was the first
defendant in the suit by name Lalitha Bhai) died on 1-2-2007.
Without noticing that the first respondent in the appeal had
died, the appeal was heard on 2-2-2007 and as per judgment
R.S.A. 677 of 2008 -:2:-
and decree dated 8-2-2007 the appeal was allowed and the
decree passed by the trial court was reversed and the suit was
decreed. It is aggrieved by that decree that the LRs of the first
defendant have come up in appeal. Since the first respondent
in the appeal before the lower appellate court died before the
hearing of the appeal and her legal representatives were not
brought on record, the judgment and decree passed by the
lower appellate court are against a dead person and would be a
nullity so far as the first respondent therein is concerned.
Hence, in the light of the decision reported in Assyamma v.
Aisabi – 1976 KLT 101 and Paru v. Devaki Varassiar –
1992 (2) KLT 687 the proper procedure is to set aside the
judgment and decree and remit the matter to the lower
appellate allowing the appellants therein to file proper petitions
to implead the legal representatives of the deceased first
respondent therein after condoning the delay if any .
Accordingly, the judgment and decree of the lower appellate
court are set aside and the matter is remitted to the lower
appellate court for disposal of the appeal afresh after permitting
the appellant therein to implead the legal representatives of the
R.S.A. 677 of 2008 -:3:-
deceased first respondent therein. It shall be open to the
appellants to file applications to set aside the abatement , if any,
and also to condone the delay in filing such petition for setting
aside the abatement.
Dated this the 20th day of November 2008.
V.RAMKUMAR,
Judge.
ani/
R.S.A. 677 of 2008 -:4:-