SANKARAN DIED Vs. DEVAKI AMMA DIED

JUDGEMENT

(1.) Defendants in a suit filed by the predecessor-in-interest of the respondents herein for recovery of possession, are the appellants in the F.A.O and the petitioners in the Writ Petition. The F.A.O is filed challenging the order dismissing the application for setting aside abatement of the appeal before the Lower Appellate Court, caused on account of the failure to implead the legal representatives of the deceased respondent (plaintiff) in the Appeal within time. The Writ Petition is filed challenging the orders dismissing the application for impleading the legal representatives of the original plaintiff and the application for condoning the delay.

(2.) The suit was decreed by the trial Court and the decree was confirmed in appeal by the Lower Appellate Court. In S.A. No. 810 of 1991 filed by the defendants, a remand was made to the Lower Appellate Court with a direction to decide afresh the plea of adverse possession and limitation raised by the first defendant in the suit. The Second Appeal was allowed and remand was made on 12.12.2001. The sole respondent in the Appeal, the predecessor-in-interest of the respondents herein, died on 22.02.2003. On 08.07.2003, the appellants before the Lower Appellate Court (defendants) filed I.A. No. 1285 of 2003 to implead the legal representatives of the deceased plaintiff. On 23.09.2003, the appellants/defendants filed I.A. No. 1808 of 2003 to condone the delay in filing the application for impleading. On 24.09.2003, I.A. No. 1814 of 2003 was filed by the appellants/defendants to set aside the abatement. On 08.10.2003, the court below dismissed I.A. No. 1814 of 2003 (application to set aside abatement). The order reads thus :

(3.) Sri. V.N. Achutha Kurup, learned Senior Counsel appearing for the respondents/plaintiffs, raised a preliminary objection that since the appellants/defendants have not challenged the judgment dated 13.10.2005, the F.A.O and the Writ Petition are not maintainable. He also submitted that no sufficient reasons are stated in the affidavit filed in support of the application for impleading or for setting aside the abatement or for condoning the delay as to why the applications were not filed within time. Sri. Vinod Chandran, learned counsel for the appellants/defendants, submitted that the F.A.O is maintainable under Order 43 Rule 1(k) of the Code of Civil Procedure. He submitted that the judgment was passed subsequent to the filing of the F.A.O. If the orders dated 08.10.2003 are set aside, the appeal would automatically get revived and it is not necessary for the appellants/defendants to file a Second Appeal challenging the judgment of the Lower Appellate Court. The counsel also submitted that sufficient reasons are stated in the affidavit accompanying the application for condoning the delay explaining the reasons for the delay.