IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 AS.No. 633 of 2000(B) --------------------- APPELLANTS/PLAINTIFFS ------------------------------------ 1. N.RAMA, S/O.NARAYANA, RESIDING AT HOSAGADDE NETTANIGE VILLAGE, VANI NAGAR , PERALA, KASARAGOD 2. MANA, S/O.DO- 3. SITHARAMA, S/O. -DO- BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE RESPONDENTS/DEFENDANTS: ------------------------------------------- 1. KESHAVA BHAT, S/O.RAMANNA BHAT, RESIDING AT SUMANVALA, BAYAR VILLAGE, VIA UPPALA KASARAGOD 2. VASUDEVA BHAT, DO- DIED AND LEGAL HEIRS IMPLEADED 3. AMMINI, WIDOW OF SEENA, RESIDING AT PAIKA, NEKRA VILLAGE VIA CHENGALA, KASARAGOD 4. RAMA/ SO.SEENA, OF -DO 5. MADHAVA, S/O.SEENA, OF -DO- 6. RAGHUCHANDRA, S/O.SEENA O F-DO 7. RATNA, D/O.-DO- 8. THIMMAPPU, S/O -DO- 9. MEENAKSHI, D/O. DO- 10. SARADA, D/O.-DO- AS 633/00 -2- 11. PARAMESHWARA, S/O. -DO- 12. GOPALA, S/O.N.RAMA MASTER, MANJANADA, HESAMANNE MANGALORE TALUK 13. GULABI ALIAS MANAKKE, S/O.RAMA MASTER RESIDING AT MUNDOLU, SUDAMVALA, BAYAR VILLAGE VIA UPPALA, KASARAGOD DISTRICT 14. APPU, S/O.RAMA MASTER, RESIDING AT KODI SUDAMVALA, BAYAR VILLAGE, VIA UPPALA KASARAGOD TALUK 15. MANA, S/O.RAMA MASTER, OF -DO- 16. AMMINI, WIDOW OF NARAYANA, KERALA RICE MILL COMPOUND RAMADAS NAGAR, KELLUDDE, KASARAGOD TALUK ADDL.RESPONDENTS 17 TO 25 : ADDL.R17 LALITHA, W/O.LATE VASUDEVA BHAT, NIDUVAJE, BAYAR VILLAGE, PO BAYAR KASARAGOD ADDL.R18 RAMA BHAT, S/O.DO ADDL.R19 SHASHI, D/O.-DO ADDL.R20 PREMILA, D/O.-DO- ADDL.R21 RAVEENDRA, S/O. DO- ADDL.R22 PANDURANGA, S/O. -DO- ADDL.R23 RAJARATHNA, S/O.DO- ADDL.R24 SRIKRISHNA, S/O. -DO- ADDL.R25 SRIDHARA, S/O.DO (LRS OF DECEASED R2 ARE IMPLEADED AD ADDL.R17 TO R25 VIDE ORDER DT.17.7.1998 ON CMP 1680/93) ADV. SRI.K.G.GOURI SANKAR RAI GP MR.P K RAVIKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON 01/09/2011 DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.633 of 2000-B ------------------------------------- Dated this the 1st day of September 2011 Judgment The defeated plaintiffs have come up in appeal. 2. According to the plaintiffs, the father of defendants 1 and 2 late Ramanna Bhataa filed OS No.121/53 against late Rama Master and his brother late Malinga Master. The defendants claimed to be cultivating tenants of the property. A decree was obtained by the plaintiffs and they took delivery of the property. While so, the decree holder died and his legal heirs namely defendants 1 and 2 in the present suit filed EP No.90/77 to recover the money portion of the decree. In execution of the decree, the properties belonging to Rama Master were attached and sold in court auction. Going by the plaint, the sale was not yet confirmed and it is averred that the plaintiffs and the 17th defendant were not parties to the EP. They, therefore, contended that the proceedings are not binding on them and the decree cannot be executed against them. They also contended that S.73 of the Kerala Land AS 633/00 2 Reforms Act is a bar for execution of the decree. They therefore, laid the suit praying for a declaration that the decree in OS No.121/53 and the consequent execution proceedings are not binding on them. 3. The first defendant resisted the suit. The filing of OS No.121/53 so also the execution petition was admitted. It was also admitted that in the execution petition - EP No.90/77, the plaintiffs and the defendants were not parties. However, when one of the respondents died during the pendency of the earlier proceedings, after a bona fide enquiry made by defendants 1 and 2 herein, according to the information so received, defendants 13 to 16 and deceased Sheena were known to be the only legal heirs of Rama Master and they were impleaded in EP No.90/77. All the contentions raised by the plaintiffs in this suit were raised in the EP also and they were found to be untenable. They point out that there was substantial representation of the estate of the deceased and therefore, the grievance now voiced by the plaintiffs has no ground. It is also pointed out that the present suit is barred by res judicata also. AS 633/00 3 4. Defendants 4 to 12 and 14 were ex parte. 5. On the basis of the above pleadings, issues were raised. Neither side adduced any evidence. On the basis of the available materials, the trial court found that there was substantial representation of the estate of the deceased in EP No.90/77 and all contentions now taken were taken in the EP and were found against them. It is also found that there was no fraud or collusion on the part of defendants 1 and 2 in not impleading the present plaintiff and the 17th defendant. Holding that the grounds raised were unsustainable, the suit was dismissed. 6. The only question that arises for consideration in this appeal is whether the court below was justified in dismissing the suit. The learned counsel for the appellant very vehemently contended that since the plaintiff and the 17th defendant are not parties to the suit, the decree is not binding on them. At any rate, after the death of their father, they were not impleaded in the EP and therefore, the proceedings in the EP also cannot bind them. Substantial contentions were put forward in the suit and an opportunity was denied to them to AS 633/00 4 agitate their claim and therefore, the lower court was not justified in dismissing the suit. 7. Though the argument may look formidable at the first blush, on a closer scrutiny, it can be seen to be without any substance. It is not in dispute that it is during the pendency of the EP No.90/77 that the predecessor-in-interest of the plaintiff had passed away. The court below has found that the decree holders had made enquiries and had brought on record some of the legal heirs. The lower court also found that there was no fault on the part of the defendants 1 and 2 in not bringing the present appellant and 17th defendant on the party array. Even otherwise, the estate of the predecessor-in-interest plaintiff was substantially represented by the persons who were brought on the party array and there was nothing to show that there was any fault on the part of the decree holders in not bringing the other legal heirs on the party array consequent on the death of the judgment debtor. However, it is seen from the judgment of the lower court that the main contention that was taken in the EP was that the decree is not executable in view of S.73 of the Kerala Land Reforms Act. That issue was considered by the AS 633/00 5 execution court on an earlier occasion and rejected. It is seen that the matter was carried in revision before this court and this court confirmed the order of the execution court. Therefore, the legal heirs of the judgment debtor who were then impleaded, had raised the very same contentions which were similar to those raised by the present appellants and 17th defendant, thus they have common interest and the contentions were found against. Apart from the said fact, the present suit is also hit by Explanation 6 to S.(1) of the Act. Viewed thus, it could not be said that the lower court was in error in dismissing the suit. The result is that no grounds are made out to interfere with the judgment and decree of the court below. The appeal is devoid of any merits and it is accordingly dismissed. P.Bhavadasan, Judge sta AS 633/00 6