IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 SA.No. 795 of 2002(F) -------------------------- AS.88/1999 of PRINCIPAL SUB COURT,KOCHI OS.443/1997 of PRL.MUNSIFF COURT., KOCHI .................................. APPELLANT(S): RESPONDENTS 2 AND 3/PLAINTIFF'S LEGAL HEIRS: ----------------------------------------------------------- 1. BHAVANI, W/O. LATE VELAYUDHAN, KAITHAVALAPPIL, NARAKKAL VILLAGE, KOCHI TALUK, NARAKKAL. 2. APPU, S/O. VELAYUDHAN, KAITHAVALAPPIL, NARAKKAL VILLAGE, COCHIN TALUK, NARAKKAL. BY ADV. SRI.K.S.MADHUSOODANAN SRI.C.P.PEETHAMBARAN RESPONDENT(S): APPELLANTS/DEFENDANTS: ------------------------------------- 1. FRANCIS KOREA, AGED 34 YEARS, S/O. MANUEL KOREA, MANAPPURATH HOUSE, MANJANAKKAD, NARAKKAL. 2. ENASI RODRIGUES, AGED 72 YEARS, S/O. AUGUSTINE ROPDRIGUES, KOLLAMVELIYAKATH HOUSE, NARAKKAL VILLAGE, COCHIN TALUK. ADV. ' SMT.A.K.RANI SRI.RAYMOND FERNANDEZ SRISHIJU VARGHEESE SRI.GOPAKUMAR.G. SRI.DILEEP VARGHESE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ------------------------ I.A.583 of 2005 and S.A.No.795 OF 2002 ------------------------------------- Dated 19th August, 2011 J U D G M E N T Appellants are the plaintiffs who filed a suit before the Munsiff Court for mandatory injunction and recovery of possession against defendants 1 and 2 (who are shown as respondents 1 and 2 in this appeal). The suit was decreed by Munsiff court. Defendants filed appeal, challenging the decree and judgment and Sub Court set aside the decree and judgment and the suit was dismissed and appeal was allowed. Challenging the said decree and judgment this second appeal is filed. 2. At the very outset, learned counsel for appellant submitted that a petition was filed by him before this court as I.A.no.583 of 2005 stating that second defendant/second respondent died on 25.9.2001 during the pendancy of the appeal filed before lower appellate court. He came to know about death only during the pendancy of the second appeal. The decree and judgment were passed by Sub Court on 22.2.2002, much after S.A. No.795/02 2 death of second respondent. The legal representatives of second respondent were not impleaded. Decree and judgment were passed by lower appellate court without noticing the fact that second respondent died. Therefore, judgment and decree are unsustainable. 3. Heard both sides. The factum of death or date of death of second respondent is not disputed. It is also not disputed that second respondent died during the pendancy of appeal before Sub Court and also much before hearing of the appeal. Admittedly no legal representatives of the second respondent were impleaded. In the above circumstances, as pointed out by learned counsel for appellant, the proper course to be adopted to set aside the ineffective decree of the first appellate court is by giving appellants an opportunity to take steps as are necessary to have abatement set aside and to have the matter proceeded with after bringing on record the legal representatives of the second respondent as held in Assy Amma Vs. Aisabi 1976 KLT 101. 4. In the light of the above decision, the decree an judgment impugned in this second appeal are not legally sustainable. I.A.no.583/2005 filed in this appeal to set aside abatement also cannot be allowed. Since second respondent died S.A. No.795/02 3 during the pendancy of first appeal. Therefore, I.A.no.583/2005 is dismissed, without prejudice to the right of the appropriate party to move for appropriate relief, before first appellate court itself, in accordance with law. In the result the following order is passed: 1. The decree and judgment of the first appellate court are set aside. 2. This appeal is remanded to the first appellate court for fresh consideration and disposal in accordance with law, in the light of the observations made in this judgment. 3. Parties shall appear before first appellate court on 26.9.2011. This appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy // P.A. to Judge.