JACOB Vs. VIRONI

JUDGEMENT

(1.) The revision petitioners are the defendants in OS No. 1281 of 1993, on the file of the Munsiff's Court, Ernakulam. The suit was filed by the respondents for declaration and for mandatory and prohibitory injunction. The suit was decreed on 31/10/1995. The defendants appealed as AS No. 64 of 1996, on the file of the Sub Court, Ernakulam. That appeal was dismissed on 31/01/1998. The defendants filed SA No. 391 of 1998 challenging the judgment and decree of the lower Appellate Court.

(2.) During the pendency of the appeal before the lower Appellate Court, the second respondent in the appeal (second plaintiff) died on 20/11/1996. It is stated that the counsel had filed a memo under R.10A of Order XXII of the Code of Civil Procedure stating that the second respondent in the appeal was dead. In spite of that, her legal representatives were not impleaded. However, without noticing the death of the second respondent in the appeal, the lower Appellate Court dismissed the appeal on the merits.

(3.) The Second Appeal was admitted. The respondents appeared. At the time of hearing, it was pointed out by the respondents that the second respondent was dead even while the first appeal was pending before the lower Appellate Court. The appellants submitted that on that ground the Second Appeal was liable to be allowed and the judgment and decree of the lower Appellate Court was liable to be set aside. That request was not accepted. However, this Court while disposing of the Second Appeal held as follows: