IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 RSA.No. 361 of 2004() --------------------- AS.26/1999 of ADDL.SUB COURT, NORTH PARAVUR OS.723/1990 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/RESPONDENT/PLAITIFF. ------------------------------------------- 1. VARIATH, S/O.ITTOOPP, KODIYAN VEETTIL, ERUMELI KARA, KUNNATHUNAD TALUK, DIED. 2. ANTONY S/O.LATE VARIAT, AGED 64 YEARS, R/A. KODIYAN VEETTIL, ERUMELI KARA, KUNNATHUNADU TALUK. BY ADV. SRI.P.SATHISAN RESPONDENT(S): APPELLANT.DEFENDANT. ----------------------------------- 1. THOMAS, S/O.CHACKO, OOROTH HOUSE, ERUMELI KARA, KUNNATHUNADU TALUK. 2. ROSEAMMA, W/O.THOMAS, OOROTH HOUSE, ERUMELI KARA, KUNNATHUNADU TALUK. ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R1 & R2 SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.361 OF 2004 --------------------------------------------- Dated 15th June, 2011 JUDGMENT Legal heirs of the deceased plaintiff in O.S.723/1990 on the file of Munsiff Court, Perumbavoor are the appellants. Defendants are the respondents. Trial court granted a decree in favour of the deceased plaintiff on 22/2/1996. Respondents filed A.S.124/1996 before Additional District Court, North Paravur which was later made over to Additional Sub Court, North Paravur as A.S.No.26/1999. The appeal was heard on 21/8/2003 and was allowed on 30/8/2003 setting aside the decree granted by the trial court and dismissing the suit. Second appeal is filed by the legal heirs. Appellants would contend that sole respondent RSA 361/04 2 in the first appeal namely, the plaintiff died on 4/12/2001 and the legal heirs were not impleaded in the first appeal and therefore, the judgment in A.S.26/1999 is a nullity as it is against a dead person. Appellants would therefore, contend that judgment in A.S.26/1999 is not sustainable. 2. Second appeal was admitted formulating the following substantial questions of law. 1) Are not the judgment and decree in A.S.26/1999 dated 30/8/2003 of the Additional sub Court, North Paravur a nullity in the eye of law since the judgment and decree were passed against a deceased person without impleading the legal representatives of the deceased cannot have any subsistence in the eye of law ? RSA 361/04 3 2) Can availability of an alternate way stand in the way of claiming easement by prescription ? 3. Learned counsel appearing for the appellants and respondents were heard. 4. Learned counsel appearing for the appellants relying on the decision of this court in Assyamma v. Aisabi (1976 KLT 101) argued that when the judgment in the first appeal was passed against the deceased plaintiff, without impleading the legal heirs, the judgment is a nullity and in such circumstance, the judgment in the first appeal is to be set aside and the case is to be remanded to the first appellate court, so as to enable the respondents to implead the legal heirs. RSA 361/04 4 5. Learned counsel appearing for the respondents submitted that in spite of the mandate in the Code of Civil Procedure that death of the respondent is to be reported to the court by the counsel appearing for him, it was not reported and appellants were unaware of the death of the deceased respondent and therefore, legal heirs were not impleaded and the appellants may not take advantage of the delay in impleading the legal heirs, if the appeal is to be remanded to the first appellate court. Learned counsel appearing for the appellants submitted that appellants will not object to their impleading as additional respondents in the first appeal. In such circumstance, appeal is to be remanded. 6. Learned Single Judge in Assyamma's case considered the procedure to be followed RSA 361/04 5 in a case where without the knowledge of the death of the sole respondent, an appeal was disposed by the first appellate court. This court held, “The proper course in the circumstances to be adopted, in my opinion, is to set aside the ineffective decree of the first appellate court, giving the appellant herein an opportunity to take such steps as are necessary to have the abatement set aside, if she is entitled to do so, and to have the matter proceeded with after brining on record the legal representative of the deceased 2nd respondent. In order to enable the appellant to do this the judgment and decree of the first appellate court are set aside and the appellant is directed, if she so chooses, to take appropriate steps to have a proper decree passed by that court with all the necessary parties on record.” As the judgment in the first appeal was passed subsequent to the death of the sole respondent, RSA 361/04 6 without impleading the legal heirs and as the death of the respondent was two years prior to the disposal of the first appeal, the judgment of the learned Sub Judge can only be set aside granting an opportunity to the respondents to implead the legal heirs. Learned counsel appearing for the respondents submitted that they would appear and the respondents may file application to implead them before the date of appearance and appellants will not oppose the application s. The submission is recorded. Appeal is allowed. Judgment in A.S.26/1999 on the file of Sub Court, North Paravur is set aside. A.S.26/1999 is remanded to Additional Sub Court, North Paravur for fresh disposal after affording an opportunity to the appellants in the first appeal, to implead the appellants herein as the legal RSA 361/04 7 heirs of deceased sole respondent therein. Respondents and the appellants are directed to appear before the first appellate court on 19/7/2011. Respondents are at liberty to file the application to implead the appellants herein and if such an application is filed, learned Sub Judge to permit the respondents to implead the appellants herein and proceed with the appeal in accordance with law. Learned Sub Judge is directed to dispose the appeal expeditiously. M.SASIDHARAN NAMBIAR, JUDGE. uj.