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2003 DIGILAW 202 (KAR)

M. R. LAXMANA v. GOVINDAPPA

2003-02-25

D.V.SHYLENDRA KUMAR

body2003
SHYLENDRA KUMAR, J. ( 1 ) THE defendants in O. S. No. 20/1981 on the file of the Civil Judge (Junior Division), at Tarikere, are in second appeal before this Court. ( 2 ) THE suit was one for declaration, partition and separate possession of the suit schedule property. The parties are related and the plaint averments were that they constituted members of a joint family. The suit had been resisted by the defendants setting up of a prior partition by way of defence. However, the Trial Court decreed the suit and declared that the plaintiff was entitled to half share in the property by partition and separate possession of the same. ( 3 ) THE aggrieved defendants had appealed to the Court of additional District Judge, at Chikkamagalore, in R. A. No. 42/1989. That appeal came to be dismissed vide judgment and decree dated 1. 4. 1999. ( 4 ) AGGRIEVED by this judgment and decree, the defendants had further appealed to this Court in R. S. A. No. 478/1999. It was submitted on behalf of the appellants in this appeal that the sole defendant who was the appellant before the lower Appellate Court had died on 12. 1. 1999 and notwithstanding the development that had taken place, the same was not brought to the notice of the Court, nor had any steps been taken in respect of the said deceased appellant, and as such in the absence of the information regarding the death of the defendant the Court had subsequently dismissed the appeal on 1. 4. 1999. The appellant had contended; that in view of the death of the sole appellant before the lower Appellate Court the judgment dated 1. 4. 1999 was a nullity in law and accordingly was required to be set aside. This Court had set aside that judgment and decree and remanded the matter to the Additional District Judge, chikkamagalore, for disposal of the appeal in accordance with law after bringing the legal representatives on record. ( 5 ) WHEN the matter was remanded back, the appeal was again dismissed by the lower Appellate Court as per the judgment and decree dated 11. 4. 2002. It is aggrieved by this judgment and decree the present second appeal is brought before this Court. ( 5 ) WHEN the matter was remanded back, the appeal was again dismissed by the lower Appellate Court as per the judgment and decree dated 11. 4. 2002. It is aggrieved by this judgment and decree the present second appeal is brought before this Court. ( 6 ) SRI S. N. Hatti, learned Counsel appearing for the appellants submit that one Sri M. R. Krishna Murthy who was himself a legal heir to the defendant appellant and was a co-appellant before the lower Appellate Court being the son of late Megalamane Ramanna also had died as an 23. 12. 2001. This development also had neither been brought to the notice of the Court by taking necessary steps nor was the Court aware of it, when the appeal itself was dismissed as on 11. 4. 2001. Sri S. N. Hatti learned Counsel also submits that the said Krishna Murthy though was one amongst the co-appellants who had a common interest with other co-appellants being the legal heir of earlier defendant appellant Megalamane Ramanna, and with the death of one of the co-appellant the right to sue the proceeding does not survive for consideration in the appeal, and in this view of the matter the appeal itself had abated, when the lower appellate Court rendered the judgment on 11. 4. 2002 and dismissed the appeal. The learned Counsel relying upon the judgment that had been rendered by this Court in respect of the very parties in r. S. A. No. 478/1999 submits that yet again this Court is required to set aside the judgment and decree of the lower Appellate Court for the very same reasons and remand the matter to the lower Appellate court for fresh disposal and learned Counsel also submits that this constitutes a question of law which requires to be considered in an appeal under Section 100 of CPC. ( 7 ) IT is only a ratio of the judgment which becomes precedent and is binding and has the force of a binding precedent. In so far as, the effect of one of the parties to the suit or appeal dying during the pendency of the proceedings, the matter is regulated by the provisions of Order 22 of CPC. The consequences are mainly dependent on the facts of each case. In so far as, the effect of one of the parties to the suit or appeal dying during the pendency of the proceedings, the matter is regulated by the provisions of Order 22 of CPC. The consequences are mainly dependent on the facts of each case. It is also to be noticed here that if an appeal has already been heard by the Court and arguments being concluded, but the judgment is pronounced later, during which period the parties die, it will not have any bearing on such judgment. These are matters which are dependent on the facts and which are required to be again noticed in the appeal in which, such judgment is required to be rendered or has been rendered. ( 8 ) IF necessary steps, as permitted by law are not taken within the stipulated time, the consequences follow in law. Either the appeal is abated or not abated. If the appeal is already abated and the judgment is rendered thereafter, it would be of no consequences in law. In the present situation also, I am of the view that if the appeal had already abated, the question of this Court entertaining the second appeal in respect of such a judgment which had been rendered subsequent to the abatement of the appeal does not arise. In fact even now the said M. R. Krishna Murthy is shown as appellant in the present appeal. This Court cannot entertain an appeal of this nature. ( 9 ) IT is always open to the concerned persons to take necessary steps in the appeal in which the developments have taken place and that cannot be done in another appeal before another forum for setting right mistake if any that had occurred and it cannot be urged as a ground for setting aside a judgment that was rendered subsequent to the abatement of the appeal. This will be particularly so, as setting aside a judgment suffered by a non diligent party will amount to placing a permission on the conduct of a careless litigant. An order of dismissal of the appeal, in an appeal already abated in no way alters the situation. The position will be different and may warrant interference only if an appeal already abated is allowed by an order/judgment passed subsequent to the abatement. That is not the position in the present case. An order of dismissal of the appeal, in an appeal already abated in no way alters the situation. The position will be different and may warrant interference only if an appeal already abated is allowed by an order/judgment passed subsequent to the abatement. That is not the position in the present case. ( 10 ) IN fact, I do not find any scope for entertaining an appeal under Section 100 of CPC in the present matter. It is open to the parties to take such steps as are open to them in law bdfefore an appropriate forum. With this observation, the second appeal is dismissed. --- *** --- .