CHELLAMMA BHARGAVI AMMA Vs. VASANTHA KUMAR N

JUDGEMENT

(1.) R.S.A. No. 1182 of 2004 is filed against the final decree passed by the Trial Court. R.S.A. 648/2010 is filed by the very same appellant challenging the decree and judgment passed by the lower Appellate Court reversing the decree of the Trial Court. That was a suit filed by the appellant contending that the preliminary decree (Ext. A-9) passed in O.S. 1424/1968 is null and void and that it is not binding on the appellant. Since these appeals pertain to the very same subject-matter, both appeals are heard together. Appellant is the daughter of Govinda Pillai who was the sole defendant in O.S. No. 1424/1968. That was a suit for redemption and for recovery of possession. When O.S. No. 1424/1968 (Ext. A-9 suit) was pending Govinda Pillai died in 1970. Defendants 2 to 4 therein were impleaded as the legal heirs of deceased Govinda Pillai. Another person was also impleaded as the 5th defendant therein contending that she was creating some documents pertaining to the suit property mentioned therein. A preliminary decree was passed in that suit. When final decree application was filed in 1985 the appellant herein was impleaded in that final decree application and a notice was issued to the appellant. That was in the year 1985. In the final decree application, the appellant herein contended that Ext. A-9 preliminary decree is a nullity since the judgment in that suit was pronounced on 31-8-1971 long after the death of Govinda Pillai who was the sole defendant in that suit.

(2.) Defendants 2 to 4 who were impleaded in that suit were not the legal heirs and that they were total strangers and that those persons were deliberately impleaded in the suit with mischievous design, it was pleaded. It was contended that since the preliminary decree is a nullity as it was passed against a dead person, no final decree can be passed as sought for in the application filed by the legal heirs of the deceased plaintiff. The objections raised by the appellant herein were not accepted by the trial court. Rejecting those contentions final decree was passed. As against the same, the appellant filed appeal as A.S. 141/2002. That was dismissed by the appellate court on 24-9-2004. It is against that judgment R.S.A. 1182/2004 has been filed.

(3.) The suit O.S. 4/2003 was filed when notice in the execution petition filed by the respondents was received by the appellant. It was contended that the suit was not barred by limitation in view of the fact that the preliminary decree was passed against a dead person and so it is a nullity and that since the objections were raised with regard to the same in the final decree application, there was no necessity to file, at that stage, a suit for a declaration that the preliminary decree passed in O.S. No. 1424/1968 is a nullity. Final decree was passed on 9-1-2001. Since the suit, O.S. No. 4/2003, was filed within three years from the date of passing of the final decree, the suit is not barred by limitation, the appellant contended.