RAJASHEKARAIAH Vs. NANJAIAH

JUDGEMENT

(1.) This appeal is filed by the plaintiffs challenging the Judgment and Decree dtd. 20/4/2006 passed by the Fast Track Court-III, Tumakuru (henceforth referred to as the First Appellate Court) in R.A. No.9/2006 by which it reversed the Judgment and Decree dtd. 4/9/1998 passed by the Court of II Additional Civil Judge (Jr. Dn.), Tumakuru, (henceforth referred to as the Trial Court) in O.S. No.328/1988.

(2.) When the appeal was listed for final hearing, the learned counsel for the appellants / plaintiffs submits that the respondent No.2 herein - Smt. Nanjamma, who was the appellant in R.A. No.9/2006 died on 1/9/2002, but the same was not intimated to the First Appellate Court. He submitted that the appeal was disposed off on 20/4/2006 without bringing the legal representatives of the deceased respondent No.2 herein on record. He further submitted that in view of the provisions of Order XXII Rule

(3.) of the Code of Civil Procedure, 1908, the appeal had abated and therefore, the impugned Judgment and Decree passed by the First Appellate Court was non est in the eye of law. 3. Per contra, the learned counsel for the respondent No.1(a) submits that the appeal was decided in favour of the deceased respondent No.2 herein and therefore, the death of the respondent No.2 herein will not alter the efficacy of the judgment passed by the First Appellate Court.