RAVIKUMAR Vs. ELIZABETH MATHEW

JUDGEMENT

(1.) The appellant in this Second Appeal is the appellant in A.S.No. 441 of 1987 on the file of the District Court of Thiruvananthapuram and is defendant No. 12 in O.S.319 of 1984 of the Subordinate Judge's Court of Thiruvananthapuram. O.S.319 of 1984 was a suit for partition filed by the predecessor of respondents 13 to 16 herein. Overruling the claims of defendant No. 12 a preliminary decree for partition was passed by the Trial Court on 21-3-1987. The 12th defendant filed an appeal A.S.441 of 1987 on 14-12-1987 challenging the said preliminary decree.

(2.) The appeal A.S. 441 of 1987 came up for hearing on 7-1-1994. It appears that pending the appeal a final decree had been passed by the Trial Court in terms of the preliminary decree that was the subject matter of challenge in that appeal. It is stated in the judgment under appeal by the lower appellate court that "when the appeal came up for hearing on 7-1-1994 both sides submitted that final decree has been passed during the pendency of this appeal and the present appeal has become infructuous. Hence both sides agreed for dismissal of the appeal without any order as to costs and recording that the legal representative of the first respondent/plaintiff have been impleaded as additional respondents 14 to 17". It is this dismissal of the appeal that is challenged by the 12th defendant in this Second Appeal.

(3.) It is seen from the endorsement that notice of the Second Appeal has been served on respondents 1, 8 to 10 and 13 and vakalath has been filed for respondents 14 to 16. Respondents 13 to 16 being the legal representatives of the deceased plaintiff I have dispensed with service of notice on the other respondents in the view I propose to take in this Second Appeal.