IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 RFA.No. 398 of 2009() --------------------- OS.27/1984 of SUB COURT, KASARAGOD .................... APPELLANT,RESPONDENTS 3 TO 5,7,9,12 TO 19, 21 TO 39 (DEFENDANTS 3 TO 5, 10, 12, 16 TO 23, 25 TO 36 AND LEGAL REPRESENTATIVES OF D7:- 1. C.H.SHIVARAMA, S/O.PARAMESHWARA RESIDING AT CHANDRAGIRI IN KALAND VILLAGE AND POST, KASARAGOD TALUK. 2. C.H.SULOCHANA, D/O.PARAMESHSWARA, RESIDING AT PUDIKAL IN BEKAL VILLAGE AND POST, KASARAGOD TALUK, 3. C.H.VISHALA,IS W/O. SUNDARA, RESIDING AT HARBOUR PROJECT, P.O. SHOMOGA, KARNATAKA STATE. 4. C.H.PUTTAPPAYYA S/O. KRISHNA NAIK, FIREMAN, PANAMBUR, HARBOUR PROJECT, PO. PANAMBUR, KARNATAKA. 5. C.H.YAJNADEVA, S/O. OF KRISHNA NAI, A.R.AND CE.OFFICE, PO.MANGALORE. 6. PANDARISHA 6TO 9 ARE THE CHILDREN OF BALAKRISHNA, NO.12 SYNDICATE BANK P.O. UDMA. 7. SHRIDHARA S/O. BALAKRISHNA, RESIDING AT CHANDRAGIRI IN KALAND VILLAGE, PO, CHANDRAGIRI, KASARAGOD TALUK 8. UMA, D/O. BALAKRISHNAN, - DO- - DO - 9. HARINI D/O BALAKRISHNA, RESIDING AT CHANDRAGIRI IN KALNAD VILLAGE, PO.CHANDRAGIRI, KASARAGOD TALUK. 10. NALINI, D/O. GOPALAKRISHNA, RESIDING AT BANGOD,THALANGARE VILLAGE AND POST KASARAGOD TALUK. R.F.A. No. 398/2009 : 2 : 11. VASANTHI W/O.PANDURANGA RAO, KORAKKOD, KASARAGOD, KASARAGOD, P.O. KASARAGOD. 12. JANARDHANA, RESIDING AT CHANDRAGIRI IN KALNAD VILLAGE PO, CHANDRAGIRI. 13. BABY, D/O.GOPALAKRISHNA, STATE BANK OF INDIA,PEENYA INDUSTRIAL ESTATE, B.94. 2ND CROSS BANGALORE. 14. VINODA 14TO 22 ARE THE WIFE AND CHILDREN OF DAMODARA RESIDING AT ANGADIMANE, CHANDRAGIRI IN KALNAD VILLAGE AND POST, KASARAGOD TALUK. 15. THILAKARAJ 16. KRISHNA KUMAR 17. GEETHA 18. GIRISHA 19. SANTHOSH 20. MAHESH 21. RAJESH 22. POORNIMA 23. B.M JAGADISHA. S/O. SEETHARAMA, C/O.STATE BANK OF INDIA, UDIPI, P.O.UDIPI, 24. B.M.GANGADHARA, S/O. SEETHARAMA, - DO- - DO - 25. PUSHPAVATHI D/O. SEETHARAMA, - DO – DO- 26. SARASWATHI W/O. SEETHARAMA, RESIDING AT ANGADIMANE IN KALNAD VILLAGE, P.O. CHANDRAGIRI. 27. SHRIMATHI RESIDING AT PODLAHITHLU IN CHANDRAGIRI VILLAGE AND POST, KASARAGOD TALUK. R.F.A. No. 398/2009 : 3 : 28. MANOHARA RESIDING AT BLOCK NO.24 ROOM NO.122, POLICE LANE, MANGALORE. 29. BABU, S/O. SEETHARAMA, RESIDING AT ANGADIMANE, KALNAD VILLAGE, P.O. CHANDRAGIRI. 30. UMESHA, - DO - - DO - 31. KAMALAKSHA, - DO - - DO - 32. CHANDRAKALA RESIDING AT RAVANESHWAR IN CHITHARI VILLAGE, HOSDURG TALUK, P.O. RAVANESHWARAM. BY ADV. MR. K.G.GOURI SANKAR RAI RESPONDENTS/PETITONERS 2 TO 7 (PLAINTIFFS 2 TO 7):- 1. C.H.SANTHA NAIK, S/O. PUTTAPPAYYA, RETIRED A.S.I. RESIDING AT MANGALORE TOWN, P.O.MANGALORE 2. C.H.PADAMANABHA, S/O. PUTTAPPAYYA, RETIRED HEAD CONSTABLE, RESIDING AT MANGALORE TOWN. MANGALORE 3. SASHIKALA, D/O. C.H NARAYANA RESIDING AT KEEKAN VILLAGE AND POST, HOSDURG TALUK. 4. PREMA, D/O. C.H NARAYANA, RESIDING AT BEET NAGAR, THOKKOT POST KARNATAKA STATE. 5. C.H.HARISHCHANDRA, S/O. C.H NARAYANA, C/O INDIAN BANK, 210 -MITTAL TOWERS, NARIMAN POINT, MUMBAI-21. 6. UMANATHA, S/O. C.H NARAYANA, RESIDING AT BEET NAGAR, THOKKOT POST KARNATAKA STATE THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 24/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- R.F.A. No. 398 of 2009 ------------------------------------------------------------ Dated this the 24th day of August, 2009. JUDGMENT This appeal is against the final decree dated 14.01.2009 passed by the Sub Court, Kasaragod in O.S No. 27 of 1984 which was a suit for partition. 2. Notice to respondents 1, 2 and 10 herein returned unserved stating that they have expired. Subsequent investigation has revealed that the 1st respondent herein who was the 1st defendant, died on 23.05.1996 and the 2nd respondent herein who was the 2nd defendant, died on 21.07.2001 and the 10th respondent herein who was the 13th defendant died on 23.12.2003. This means that all the three aforesaid respondents died when the matter was pending before the court below and the final decree passed by that court on 14.01.2009 is against the aforesaid dead persons. So, the decree is a nullity so far as it relates to respondents 1, 2 and 10 herein. The proper procedure in such R.F.A. No. 398/2009 : 2 : circumstances is to set aside the judgment and decree passed by that court and send the matter to that Court for appropriate correction of the cause title. (vide Assyamma v. Aisabi - 1976 KLT 101). Accordingly, the final decree and judgment dated 14.01.2009 passed by the Sub Court, Kasaragod is set aside and the matter is remitted to that court for disposal afresh after giving the final decree applicants an opportunity to file petitions for impleading the legal representatives of defendants 1, 2 and 13 and other ancillary petitions. This appeal is disposed of as above. Dated this the 24th day of August, 2009. V. RAMKUMAR, JUDGE. rv R.F.A. No. 398/2009 : 3 :