PRASANNA KUMAR Vs. VASUDEVAN NAIR

JUDGEMENT

(1.) LEGAL heirs of defendants 1 and 2 in O.S.No.138/96 on the file of the Munsiff's Court, Ranny are the appellants. They are the petitioners in I.A. Nos.717/2007 and 825/2007 in A.S. No.17/2000 on the file of the Additional District Court, Pathanamthitta. The appeal is directed against the order dated 27/6/2011 in I.A.Nos.717/2007 and 825/2007 in A.S.No.17/2000. The court below found that the prayers for condonation of delay and setting aside the abatement and the consequent prayer for impleadment are not allowable and the petitions are liable to be dismissed. Aggrieved by the said order the legal heirs of defendants 1 and 2 preferred this appeal. The parties are hereinafter referred to as the petitioners and respondent as arrayed in the aforesaid I.As.

(2.) THE sole respondent in the said IAs. as plaintiff filed the suit for declaration of title and for permanent prohibitory injunction. The suit was decreed. Defendants filed A.S.No.17/2000 challenging the decree and judgment passed by the trial court in O.S.No.138/1996. The appeal was dismissed on merits on 31/7/2006 without noticing the death of defendants 1 and 2. Stating that they came to know about the passing of the decree and judgment in A.S.No.17/2000 the legal heirs of defendants 1 and 2 filed I.A.No.717/2007 praying to declare that the judgment and decree is a nullity and to implead them as legal heirs of appellants 1 and 2. I.A.No.825/2007 was also filed to set aside the abatement and condone the delay in setting aside the abatement.

(3.) THE Lower Appellate Court thereafter examined I.A.Nos.717/3007 and 825/2007 on merits. The case of the petitioners is that they came to know about the disposal of the appeal only on 11/6/2007 when the Advocate for the appellants informed them over telephone that the judgment and decree had been obtained by him in the above appeal. The Lower Appellate Court observed that the Advocate of the appellants must have been intimated the factum of death of appellants 1 and 2 to the court below in view of the provisions contained under Order 22 Rule 10A C.P.C. The court further observed that in all probability the counsel may contact the parties before arguing the case on merits and that in that eventuality he may know the death of the appellants. These observations are made on the assumption that the lower Appellate Court might have got knowledge about the death of appellants 1 and 2. The Lower Appellate Court also observed that no affidavit has been filed by the counsel concerned stating that he was not aware of the death of the parties. On the basis of the said reasons and relying on the judgment of the Apex Court, the court below held that there was no justification for not reporting the death of appellants 1 and 2 before the court below and arguing the case on merits in the absence of the appellants 1 and 2.