IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 RSA.No. 677 of 2008(E) ---------------------- AS.96/2000 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.620/1989 of I ADDL.M.C.,TRIVANDRUM .................... APPELLANTS/IST RESPONDENT --------------------------------------------------- 1. LALITHA BAI, LAKSHMI VIHAR, DIED, KADAKAMPALLY VILLAGE, OARUVATHIKOTTA, THIRUVANANTHAPURAM. 2. AJITHA KUMARI, D/O.LALITHA BAI, LAKSHMI VIHAR, KADAKAMPALLY VILLAGE OARUVATHIKOTTA, THIRUVANANTHAPURAM 3. ANITHA KUMARI, D/O.LALITHA BAI, LAKSHMI VIHAR, DO.DO. 4. AJITH KUMAR, S/O.LALITHA BAI,DO.DO. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): --------------- 1. P.RETNAMMA, D/O.B.PADMAKSHY MADAVILAKATHU VEEDU, OARUVATHIKOTTA, KADAKAMPALLY THIRUVANANTHAPURAM. 2. P.SARA, D/O.PADMAKSHY,( DIED) DO/DO 3. P.GOPALAKRISHNAN, SAROVARAM, TC.13/124, PETTAN PO., THIRUVANANTHAPURAM. 4. G.S.JAYASREE, D/O.GOPALAKRISHNAN, KRISHNAPURATHU HOUSE, KESAVADASAPURAM PATTOM PO., THIRUVANANTHAPURAM. 5. G.S.MANI, D/O.GOPALAKRISHNAN, ALAKAPURI, 6. KANAKAM NATARAJAN, LEKSHMI VIHAR OARUVATHIKOTTA, THIRUVANANTHAPURAM. 7. N.LATHIKA, W/O.M.VAMADEVAN, FROM THANNICHAL HOUSE, ORUVATHIKOTTA, ANAYARA PO., R/AT.LEKSHMY BHAVAN VENPALAVATTOM, ANAYARA PO., THIRUVANANTHAPURAM. 8. T.V.UNNIKRISHNAN, LEKSHMY BHAVAN VENPALAVATTOM, ANAYARA PO., THIRUVANANTHAPURAM. 9. LEKSHMY, D/O.M.VAMADAVAN (MINOR) VENPALAVATTOM, ANAYARA PO., THIRUVANANTHAPURAM. (REP. BY HER MOTHER 7TH RESPONDENT). ADV. SRI.R.S.KALKURA(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 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:-