IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 WP(C).No. 1571 of 2009(K) ------------------------- CMA.12/2007 of SUB COURT, THIRUVALLA ORDER IN IA NO.2908/2006 IN OS.437/2006 of MUNSIFF COURT, THIRUVALLA .................... PETITIONER(S): --------------- GEORGE KURIAKOSE, S/O.GEORGE, PAZHAYAPURACKAL VEEDU, KUNNAMTHANAM MURI AND VILLAGE, MALLAPPALLY TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT(S): --------------- 1. ESTHER JACOB, GRACE BHAVANATHIL KUNNAMTHANAM MURI AND VILLAGE MALLAPPALLY TALUK. 2. ZACHARIA MATHEW, MALIYIL VEEDU KUNNAMTHANAM MURI AND VILLAGE MALLAPALLY TALUK. 3. S.N.VIJAYAKUMAR, SIVASADANATHIL VEEDU CHERUVALLOOR MURI,CHERIANADU VILLAGE CHENGANNOOR TALUK. ADV. SRI.SATHISH NINAN FOR R3 SRI.SANTHOSH MATHEW FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 1571/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN OS NO.437/2006 DATED 29.9.2006. EXT.P2: COPY OF THE AFFIDAVIT AND PETITION FOR INJUNCTION DATED 29.9.2006. EXT.P3: COPY OF THE REPORT OF THE COMMISSIONER DATED 31.10.2006 DATED 6.11.2006. EXT.P3(a) : COPY OF THE SKETCH PREPARED BY THE ADVOCATE COMMISSIONER EXT.P4A: COPY OF THE PLAINT IN OS NO.438/2006 DATED 29.9.2006. EXT.P5: COPY OF THE OBJECTION DATED 10.10.2006. EXT.P6: COPY OF THE COMMON ORDER DATED 21.2.2007 IN IA NO.2911/2006 IN OS NO.438/2006 AND IN IA NO.2908/2006 IN OS NO.437/2006. EXT.P7: COPY OF SALE DEED DATED 22.3.2001. EXT.P8: COPY OF SALE DEED DATED 13.12.2002. EXT.P9: COPY OF THE SALE DEED DATED 16.4.2003. EXT.P10: COPY OF THE SALE DEED DATED 22.3.2001. EXT.P11: COPY OF THE SALE DEED DATED 16.12.1985 EXT.P12: COPY OF THE ORDER DATED 31.10.2008 EXT.P13: COPY OF THE REPORT OF THE COMMISSIONER DATED 1.11.2006. EXT.P13(a): COPY OF THE SKETCH. EXT.P14: COPY OF THE REPORT OF THE COMMISSIONER DATED 1.2.2007. EXT.P14(a) : COPY OF THE SKETCH. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.1571 of 2009 --------------------------------------------- Dated this the 13th day of February, 2009 JUDGMENT The petitioner filed O.S.No.437/06 on the file of the court of the Munsiff of Thiruvalla against the respondents in the Writ Petition. Respondent Nos.3, 1 and another filed O.S.No.438/06 against the Writ Petitioner and others. In O.S.No.437/06, the plaintiffs therein filed I.A.No.2908/2006 for temporary injunction. In O.S.No.438/06, the plaintiffs therein filed I.A.No.2911/2006 for temporary injunction. These applications were disposed of by Ext.P6 common order dated 21.2.2007 by which I.A.No.2911/2006 was dismissed and I.A.No.2908 of 2006 was allowed. Respondents 1 and 3 and another filed C.M.A.Nos. 10 of 2007 and 12 of 2007 challenging Ext.P6 order dated 21.2.2007. The lower appellate court disposed of the C.M.Appeals by Ext.P12 common order dated 31.10.2008. The appellate court allowed the appeals in part. Ext.P12 order, to the extent it is objected is under challenge in this Writ Petition. 2. It is submitted by the learned counsel for the petitioner as well as the learned counsel appearing for the third respondent that during the pendency of the appeals, appellant WPC No.1571/2009 2 No.2 in C.M.A.No.10 of 2007 and appellant No.1 in C.M.A.No.12/07, namely, Esther Jacob Sekharan died. This was not brought to the notice of the lower appellate court. The legal representatives of the deceased person were also not impleaded. In view of the non-impleadment of the legal representatives of the deceased appellant, the appeals have abated. Therefore, the Writ Petition is liable to be allowed and Ext.P12 common judgment in C.M.A.Nos.10 of 2007 and 12 of 2007 is liable to be set aside. I do so. The appellants in the C.M.Appeals would be entitled to file applications before the Sub Court, Thiruvalla to implead the legal representatives of the deceased Esther Jacob Sekharan, to set aside the abatement and to condone the delay. On filing such applications, the Sub Court, Thiruvalla shall consider and dispose of the applications in accordance with law. If the applications are allowed, the Sub Court shall dispose of the appeals on the merits. K.T.SANKARAN, JUDGE csl