IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 AS.No. 564 of 1998(A) --------------------- OS.117/1991 of SUB COURT, PATHANAMTHITTA .................... APPELLANT(S): PLAINTIFFS: ------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, RANNY. BY SPECIAL GOVT PLEADER (FORESTS) SRI. M.R. SABU RESPONDENT(S): DEFENDANTS: ------------------------------------------------- 1. K.V. ABRAHAM, S/O. K.J.VARKEY, KARIMPANAL HOUSE, KANJIRAPPALLY, KANJIRAPPALLY TALUK. 2. K.V. GEORGE, S/O.K.J.VARKEY, KARIMPANAL HOUSE, KANJIRAPPALLY, KANJIRAPPALLY TALUK. *3. K.V. THOMAS, S/O.K.H.VARKEY, KARIMPANAL HOUSE, KANJIRAPPALLY, KANJIRAPPALLY TALUK. ( D E L E T E D). 4. K.V.SEBASTIAN, S/O.VARKEY, KARIMPANAL HOUSE, KANJIRAPPALLY, KANJIRAPPALLY TALUK. 5. K.V. NICHOLAS, S/O.K.J.VARKEY, KARIMPANAL HOUSE, KANJIRAPPALLY, KANJIRAPPALLY TALUK. 6. K.V.KURIAN, S/O.VARKEY. KARIMPANAL HOUSE, KANJIRAPPALLY, KANJIRAPPALLY TALUK. (*R3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DTD. 9/08/2005 ON I.A.NO.2330/2005) BY ADV. SRI.JOHN JOSEPH VETTIKAD THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J --------------------------------- A.S.NO.564 OF 1998 -------------------------------------- Dated this the 25th day of November, 2010 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judges court, Pathanamthitta in O.S.No.117/1991. The plaintiff is the State Government and it has filed a suit for recovery of possession of 26.50 acres of Forest land from the defendants. The defendants on the other hand, contended that the Government have no right over the said property. After considering the materials the trial court dismissed the suit on merits. It is against that decision the present appeal is preferred by the State. The very unfortunate development was there during the pendency of the suit. One of the defendants namely the third defendant died during the pendency of the suit. The Government moved an application for impleading the legal representatives of the deceased Thomas as per I.A No.52/1997. Since the Government did not take steps to proceed with the I.A the said application was dismissed for default. Now it is argued before me that there cannot be a separable decree and there can be only a consolidated decree of recovery of possession on the strength of title. It is argued that since the third defendant died and as only a A.S.NO.564 OF 1998 2 consolidated decree was permissible the court below should have found that the whole suit has abated for the non impleadment of legal representatives of the third defendant. Now, unfortunately, neither the court nor the parties did have such a contention before the trial court and ultimately resulted in passing a decree on merits dismissing the suit. It is against that decision the Government have come in appeal. The learned counsel for the contesting respondents would contend that since the whole suit has abated an appeal of this nature cannot be maintained. Now a situation had arisen whether with dead party on record the trial court was right in proceeding to dispose of the matter dismissing the suit. It is also contended that the death of that party in effect would result in total abatement of the suit. So if it is true, a decree passed against all the persons including a person who is reported dead will have only the characteristics of a decree of nullity. Therefore, it has to be stated that the appropriate remedy for the appellant in this case is to move the court which has pass the decree to implead the legal representatives of the deceased third defendant and then requesting for a proper adjudication of this suit. I make it clear that when an application of such a nature is filed the A.S.NO.564 OF 1998 3 defendants in the suit who are permitted to raise all contentions possible in law for the reason that there has been an inordinate delay in the matter. I am not expressing anything on merits in all those applications and after the disposal of the application if filed the said suit can be disposed of. Since a decree against a dead person is now before me in an appeal, I hold that this appeal is not maintainable. With the observations made above the appeal is dismissed. Disposed of accordingly. M.N.KRISHNAN, JUDGE pm