SUBASH V. R. Vs. PRABHAVATHY GEETHA

JUDGEMENT

(1.) The appellants are the plaintiffs in O. S. No. 8/95 on the file of the Munsiff - Magistrate, Paravoor.

(2.) The first plaintiff is the son inlaw of the second plaintiff. He is abroad. The second plaintiff has filed the Suit on behalf of the first plaintiff as his Power of Attorney agent against the defendants, who are the members of the latter's family. The suit was filed on 6th January 1995. Lalitha, a sister of the first plaintiff, had died in an accident on 24th December 1994. It is stated that the plaintiffs did not know about, it when they filed the suit on 6th January 1995. The summons sent to her was returned reporting that she was dead. In spite of the return, no steps were taken to implead her legal representatives. Learned Munsiff dismissed the suit on its merits and also found that the suit was bad for non joinder of the legal representatives of the 6th defendant. Against the dismissal of the suit, the second plaintiff as Power of Attorney Holder filed A.S. No. 102/97 before the District Court, Kollam. In that matter, he showed the legal representatives of the 6th defendant also as respondents 18 and 19. The 6th defendant's name was also shown in the party array, but noting that she had died. The plaintiff / appellant also filed an application along with the appeal for permission to implead respondents 18 and 19 as the legal representatives of the 6th defendant and prayed for setting aside the "abatement". That application was. numbered as I. A. No. 1495/97. It is seen that on that application an endorsement was made stating that it was not pressed and signed by junior counsel for the appellant, The petition was dismissed as not pressed. The date of the order is not decipherable from the certified copy. Anyhow, it is shown as 28th July 1998 in the appeal memorandum in C. M. A. No. 316/98. It is seen that the learned District Judge, on 28th July 1998, passed an order in. the appeal also stating that it was abated. There is no order dismissing the appeal. But apparently, proceedings have been closed on the basis that the appeal has abated. Apparently, no decree has also been drawn up in the appeal.

(3.) The plaintiff / appellant has now filed C.M.A. No. 316/98 challenging the order dismissing I .A. No. 1495/97 under Order XLIII R.1(k) C.P.C. as if it is an order refusing to set aside the abatement. It is submitted that, by way of caution, he has filed a second appeal against the order of the District Judge dropping the proceedings in appeal as abated. But, it has not been numbered by the office noting that there is no decree to be appealed against. C.M.A. No. 316/98 was filed with an application to condone the delay. The delay has been condoned. When the matter came up for admission, it was noticed that a second appeal is also filed, but it has not been numbered. It is seen that the unnumbered second appeal has also been sent to the court and has been ordered to be posted along with C.M.A. No. 316/98.