IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 RSA.No. 1105 of 2008() ---------------------- AS.30/2003 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.206/1999 of MUNSIFF COURT,HARIPAD .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2 ---------------------------------------------------------- 1. JAMEELA, W/O.MUHAMMED MOIDEEN KUNJU, ALUMMOOTTIL VEETTIL, PILAPPUZHA MURI, HARIPAD VILLAGE. 2. SUNIL, S/O.MUHAMMED MOIDEEN KUNJU, ALUMMOOTTIL VEETTIL, PILAPPUZHA MURI, HARIPPAD VILLAGE. BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENTS: RESPONDENTS/ PLAINTIFFS -------------------------------------- 1. N.A.RAHIM, S/O.NAZARUDEEN, RAHIM COTTAGE VETTUVENI MURI, KARTHIKAPPALLY VILLAGE FROM ALUMOOTTIL, PILAPUZHA MURI, HARIPAD VILLAGE. 2. MARIAM SHAMANI, D/O.NAZARUDEEN, RAHIM COTTAGE, VETTUVENI MURI, KARTHIKAPPALLY VILLAGE FROM ALUMOOTTIL, PILAPPUZHA MURI, HARIPAD VILLAGE. 3. SABEENA @ SUNITHA, D/O.JAMEELA, ALUMMOTTIL VEETTIL, PILAPPUZHA, HARIPAD. ADV. SRI.V.S.AFSAL KHAN FOR R1 SRI.K.JAYAKUMAR FOR R1 SRI.P.B.KRISHNAN FOR R1 SMT.GEETHA P.MENON FOR R1 SRI.N.AJITH FOR R1 SRI.P.M.NEELAKANDAN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. ------------------------------- R.S.A No. 1105 OF 2008 ------------------------------- Dated this the 24th November, 2008. JUDGMENT Heard. Admitted. 2. During the course of hearing of this second appeal on admission it was pointed out by the learned counsel for the first respondent/caveator/plaintiff that the second plaintiff who was the second respondent herein and who was the sister of the first plaintiff had died on 14.1.2007, much prior to the final hearing of the appeal before the lower appellate court. If so, the judgment and decree passed by the lower appellate court were passed against a dead person and would be a nullity so far as they relate to the second respondent in the appeal. In that view of the matter, the judgment and decree cannot be sustained and the proper procedure to be followed is as laid down in the decisions reported in Assyamma v. Aisabi {1976 KLT 101} and Uma Andarjanam and others v. Neelakandan Namboothiri and others {2001 (1) KLJ 721}. Accordingly the judgment and decree passed by the lower appellate court are set aside and the matter is remitted to that court giving R.S.A. 1105/2008 2 the appellants therein an opportunity to file appropriate petitions to implead the legal heirs of deceased second respondent therein, after filing necessary applications to set aside abatement, if any and to condone the delay etc. R.S.A is disposed of accordingly. V. RAMKUMAR JUDGE jj