V.R. Subash and Another vs Prabhavathy Geetha and Others

K.V. Sankaranarayanan, J.—The Appellants are the Plaintiffs in O. S. No. 8/95 on the file of the Munsiff-Magistrate, Paravoor.

The first Plaintiff is the son-in-law of the second Plaintiff. He is abroad. The second Plaintiff has filed the Suit on behalf of the first Plaintiff as his Power of Attorney agent against the Defendants, who are the members of the latter''s family. The suit was filed on 6th January 1995. Lalitha, a sister of the first Plaintiff, had died in an accident on 24th December 1994. It is stated that the Plaintiffs did not know about, it when they filed the suit on 6th January 1995. The summons sent to her was returned reporting that she was dead. In spite of the return, no steps were taken to implead her legal representatives. Learned Munsiff dismissed the suit on its merits and also found that the suit was bad for nonjoinder of the legal representatives of the 6th Defendant. Against the dismissal of the suit, the second Plaintiff as Power of Attorney Holder filed A.S. No. 102/97 before the District Court, Kollaro. In that matter, he showed the legal representatives of the 6th Defendant also as Respondents 18 and 19. The 6th Defendant''s name was also shown in the party array, but noting that she had died. The Plaintiff/Appellant also filed an application along with the appeal for permission to implead Respondents 18 and 19 as the legal representatives of the 6th Defendant and prayed for setting aside the "abatement". That application was numbered as I. A. No. 1495/97. It is seen that on that application an endorsement was made stating that it was not pressed and signed by junior counsel for the Appellant. The petition was dismissed as not pressed. The date of the order is not decipherable from the certified copy. Anyhow, it is shown as 28th July 1998 in the appeal memorandum in C. M. A. No. 316/98. It is seen that the learned District Judge, on 28th July 1998, passed an order in the appeal also stating that it was abated. There is no order dismissing the appeal. But apparently, proceedings have been closed on the basis that the appeal has abated. Apparently, no decree has also been drawn up in the appeal.

The Plaintiff/Appellant has now filed C.M.A. No. 316/98 challenging the order dismissing I.A. No. 1495/97 under Order XLIII Rule 1(k) Code of Civil Procedure as if it is an order refusing to set aside the abatement. It is submitted that, by way of caution, he has filed a second appeal against the order of the District Judge dropping the proceedings in appeal as abated. But, it has not been numbered by the office noting that there is no decree to be appealed against. C.M.A. No. 316/98 was filed with an application to condone the delay. The delay has been condoned. When the matter came up for admission, it was noticed that a second appeal is also filed, but it has not been numbered. It is seen that the unnumbered second appeal has also been sent to the court and has been ordered to be posted along with C.M.A. No. 316/98.

Now, as noticed above, there was no death of a party pending appeal. So, it was not a case of abatment of the appeal on the death of a party. If a party to the proceedings in the lower court had died after the disposal of the suit and before the appeal is filed, normally, the legal representatives can be made parties in the appeal. If, by mistake, a dead person''s name is shown as a Respondent in the appeal, the proper course is to seek substitution of the legal representatives Sreedharan v. Sreedharan Embranthiri 1967 K.L.T. 1016. That will be the case when a suit is filed against a dead person also. The legal representatives can be brought on record under Order 1 Rule 10 Code of Civil Procedure as additional parties.

In this case, even on the date of institution of the suit, the 6th Defendant was dead and that has been so found by the judgment also. So in appeal, the proper course for the Appellant was to challenge the finding or seek an opportunity to implead the legal representatives. It was not a case for filing: an application for impleading the legal representatives in the appeal with an application for setting aside the abatement. Apparently, the learned Counsel has made an endorsement "not pressed" on I.A. No. 1495/97 for this reason. Now, in the appeal memorandum in C. M. A. No. 316/98, it is stated that the learned Counsel had committed an indiscretion in making the endorsement at the instance of the District Judge. Apparently, there was no mistake on the part of the counsel in making the endorsement as the petition was not, in any case, maintainable. Since there was no abatement of the appeal, there was no scope for filing an appeal against the dismissal of the petition for setting aside the appeal whether "on merits" or as "not pressed". It is also to be noted that this Court has in Damodaran v. Sankaran 1985 K.L.T. 153 held that an appeal is not maintainable against such an order passed at the appellate stage. So, it is not necessary to entertain C.M.A. No. 316/98. It is liable to be dismissed.

It is clear from the decision in Madan Naik (Dead) by Legal Representatives and Others Vs. Hansubala Devi and Others, that when an appeal abates, there is no decree and so there is no scope for a second appeal also. It is not necessary to entertain the second appeal. It is only to be rejected.

As seen above, the learned District Judge has closed the appeal proceedings as abated and in fact, there was no abatement of the appeal. The learned District Judge has not gone into the merits of the case. There is. no order dismissing the appeal and no decree has been drawn up. The proper course for the Appellant appears to be to point out these facts to the District Judge by an application and seek restoration of the proceedings. The learned District Judge may consider any such application on its merits in accordance with law.

Subject to this, C.M.A. No. 316/98 is dismissed. The unnumbered second appeal is rejected.

*A reproduction from ILR (Kerala Series)