M C V SUBBAIAH Vs. B OBAYYA

JUDGEMENT

(1.) this miscellaneous appeal is filed against the judgment and decree of the court of the subordinate judge, kandukur, in a.s. No. 10 of 1980 dated 8-2-1981 remanding the case to the trial court.

(2.) the facts of the case are : one mallaboyina peda venkata subbiah and his brother, chinna venkata subbaiah, filed a suit for injunction in respect of the suit property against the defendant-respondents herein. The parties have adduced evidence in the case. Pending the suit peda venkata subbaiah died. Therefore his mother, chinnamma, was brought on record as his representative. It seems, thereafter, chinnamma also died and the fact of this death was not brought to the notice of the court. The trial court decreed the suit. Against that judgment and decree, one of the defendants, obayya (d.1) filed an appeal. The factum of death of chinnamma was brought to the notice of the appellate court and it was contended that since the lrs. Of chinnamma were not brought on record the suit stood abated. The lower appellate court in this background of the matter set aside the decree and judgment of the trial court and remanded the matter to the trial court for purposes of considering the question whether the suit got abated in full or part and also for fresh disposal of the suit in the event of the suit having not abated 01 having abate only in part. Aggrieved by that judgment and decree, the present revision petition is filed.

(3.) the learned counsel for the appellant contends that peda vekata subbaiah and china venkata subbaiah (the original plaintiffs) were own brothers and they together filed the suit for purposes of injunction against the defendants as they were interfering with their possession. Further, after the death of peda venkata subbaiah, his mother chinnamma was also brought on record as his legal representative. Therefore, there is no abatement and that the order of remand of the lower appellate court is against the principles of justice and law and it only causes much delay in the disposal of the case. It is mainly urged by the learned counsel for the appellant that even if the legal representatives of chinnamma are not brought on record, still the appellant2nd plaintiff can continue the suit as it was filed on a common cause of action arose to both the plaintiff brothers. The learned counsel has relied on the following decisions in this regard.