MANGALA BAI Vs. SAYYAD FAKIR

JUDGEMENT

(1.) This appeal preferred under Or.43, R.1(k) CPe arises out of an order made by the Civil Judge, Karwar on I.A.Nos.I to IV in C.A.571 of 1965 holding that the appeal has abated consequent on the failure of the appellants to bring on record the legal representatives of one of the respondents therein.

(2.) The facts leading up to the appeal are these: ayyad Hanif Shah and his wife Imanbu executed two mortgage deeds in respect of certain property on 28th Feb, 1882 and 25th Jan, 1883. They died before redeeming the mortgages. The dispute arose among the persons claiming to be the legal heirs of the mortgagors as to who should redeem the mortgages. A suit for declaration was instituted in the Munsiff Court, Haliyal stating that the plaintiffs together with defendants 5 to 7 are the heirs entitled to redeem the mortgages. The appellants before me resisted the said suit contending, inter alia, that the plaintiffs are not the heirs of the mortgagors. The trial Court decreed the suit declaring that the plaintiffs alone are thq heirs entitled to redeem the mortgages. Aggrieved by the decree, defendants 1 to 4 preferred an appeal in thq Court of the Civil Judge, N.Kanara. During the pendency of the appeal, respondents 3 & 6 therein (that is plaintiff-3 and defendant 5) died. The applications to bring their legal representatives were filed by the appellants therein after one year from the date of death of the said respondents. The appellate Court refused to condone the delay on the ground that the cause shown by the appellants was not sufficient. The result was disastrous. The Court dismissed the applications and held that the appeal against the deceased respondents abated. It further held that if the appeal against the remaining respondents was allowed, it would lead to inconsistent and contradictory judgments in respect of the same subject matter in the suit and so the entire appeal has abated.

(3.) Some of the defendants challenging the correctness of the appellate order, have preferred the Miscellaneous Second Appeal to this Court.