ASSY AMMA Vs. AISABI

JUDGEMENT

(1.) Plaintiff in O. S. No. 229 of 1964 on the file of the Munsiff of Hosdrug has come up in second appeal having been dissatisfied with the judgment and decree of the Trial Court which has been confirmed by the learned Subordinate Judge of Kasaragod in A.S. No. 154 of 1968. C.M.P. No. 9253 of 1975 is for impleading the respondents therein as supplemental respondents, being the legal representatives of the deceased second respondent. C.M.P. No. 9259 of 1975 is for condoning the delay in filing the second appeal as against the persons brought on record as the supplemental respondents (legal representatives of deceased second respondent).

(2.) When the two petitions, C.M P. Nos. 9258 and 9259 of 1975, came up for hearing, Sri T.P. Kelu Nambiar, counsel for the respondents raised an objection to the maintainability of these petitions. The counsel submitted that the appeal itself is not competent in as much as there was no decree or judgment in law, as the second respondent whose legal representatives are sought to be impleaded had died as early as on 14-12-1972 whereas the appeal before the first appellate court was disposed of only on 31-7-1974. The counsel, therefore would submit that the petition for impleading the legal representatives of the deceased second respondent, and the petition for condoning the delay in filing the second appeal cannot be maintained. There is, I find, substance in this argument as, on the death of the 2nd respondent the appeal had abated, and the decree passed by the first appellate court in ignorance of this fact in the eye of law is a nullity. Strictly speaking, there was no decree to be appealed against.

(3.) The proper course in the circumstances to be adopted, in my opinion, is to set aside the ineffective decree of the first appellate court, giving the appellant herein an opportunity to take such steps as are necessary to have the abatement set aside, if she is entitled to do so, and to have the matter proceeded with after brining on record the legal representative of the deceased 2nd respondent. In order to enable the appellant to do this the judgment and decree of the first appellate court are set aside and the appellant is directed, if she so chooses, to take appropriate steps to have a proper decree passed by that court with all the necessary parties on record.