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2003 DIGILAW 1021 (AP)

Madala Venkateswara Rao v. Lanka Subba Rao

2003-08-12

C.Y.SOMAYAJULU

body2003
( 1 ) RESPONDENTS in the S. A. are the Petitioners in this petition to set aside the judgment dated 11-9-1997 and to restore it to file. The ground on which the Petitioners are seeking to set aside the judgment is that the appellant in the second appeal died on 3-6-1997 and his legal representatives were not brought on record and so the appeal stood abated. But without noticing that fact the court by its judgment dated 11-9-1997, i. e. , subsequent to death of the appellant, allowed the appeal and so the judgment in the second appeal is liable to be set aside. ( 2 ) WHEN the matter came up for hearing before the learned single Judge who passed the judgment, the following order was passed:"the counsel for the respondent is absent. He is directed to issue fresh notice to the appellant as sri Veerabhadrayya, counsel for the appellant has returned the records to the appellant. Post after service of notice. "again when the matter came up for hearing before another learned Judge on 19-11-1999, he passed the following order:"this is an application to set aside the judgmentdatedll-9-1997ins. A. 684of 1987 and to restore the same to file. As the judgment in S. A. was rendered by hon ble Justice S. V. Maruthi, the application was posted before the same learned Judge who ordered notice of the application to the. appellant as the learned counsel for the appellant submitted that the records were returned to the appellant after the disposal of the second appeal. Accordingly, notice was issued to the appellant but the same was returned unserved with the endorsement that the addressee died. ( 3 ) UNDER these circumstances, the C. M. P. may be posted before the same learned Judge for further orders after obtaining the orders of the Hon ble Chief Justice. " ( 4 ) THEREAFTER, after retirement of the hon ble Justice S. V. Maruthi, the matter came up before another learned Judge on 13-3-2003 and was adjourned to 28-3-2003. Subsequently the matter came up for hearing before me. " ( 4 ) THEREAFTER, after retirement of the hon ble Justice S. V. Maruthi, the matter came up before another learned Judge on 13-3-2003 and was adjourned to 28-3-2003. Subsequently the matter came up for hearing before me. ( 5 ) IT is the contention of the counsel for the petitioner that since the appellant in the case died on 3-6-1997 the appeal disposed of after his death, without bringing on record his legal representatives is improper and so the judgment in the S. A. dated 11-9-1997 is liable to be set aside. An unattested Xerox copy of certificate dated 25-9-1997 issued by dr. K. V. R. Prasad of Sridevi Nursing Home is produced to show that appellant died on 3-6-1997. ( 6 ) MERELY basing on an unattested Xerox copy of the certificate issued by a doctor of a nursing Home, the death of a person cannot be established. ( 7 ) IF the appellant died on 3-6-1997, when his legal representatives were not brought on record within 90 days therefrom, by 3-9-1997, i. e. , even prior to the date of disposal the appeal stood abated by 11-9-1997. So, allowing an appeal, which stood abated, does not enure to the advantage of the legal representatives of the deceased appellant. It is well-known that a decree passed in favour of, or against a dead person, is a nullity. If and when the decree in S. A. is sought to executed petitioner can oppose the same by establishing that even by the date of pronouncement of the judgment on 11-9-1997, the appellant in the Second Appeal died and so the judgment in the appeal is a nullity and cannot be executed. ( 8 ) IN my opinion the petitioner cannot be said to be aggrieved by the judgment allowing of the appeal because, in the circumstances stated above petitioner s right is not put in jeopardy. If at all it is the legal representatives of the appellant that can be said to be aggrieved. It is they that should come to court and seek to set aside the judgment dated 11-9-1997 and so I find no merit in this petition. ( 9 ) HENCE the petition is dismissed.