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2022 DIGILAW 324 (KAR)

Rajashekaraiah v. Nanjaiah

2022-03-07

R.NATARAJ

body2022
JUDGMENT 1. This appeal is filed by the plaintiffs challenging the Judgment and Decree dtd. 20/4/2006 passed by the Fast Track Court-III, Tumakuru (henceforth referred to as the 'First Appellate Court') in R.A. No.9/2006 by which it reversed the Judgment and Decree dtd. 4/9/1998 passed by the Court of II Additional Civil Judge (Jr. Dn.), Tumakuru, (henceforth referred to as the 'Trial Court') in O.S. No.328/1988. 2. When the appeal was listed for final hearing, the learned counsel for the appellants / plaintiffs submits that the respondent No.2 herein - Smt. Nanjamma, who was the appellant in R.A. No.9/2006 died on 1/9/2002, but the same was not intimated to the First Appellate Court. He submitted that the appeal was disposed off on 20/4/2006 without bringing the legal representatives of the deceased respondent No.2 herein on record. He further submitted that in view of the provisions of Order XXII Rule 3 of the Code of Civil Procedure, 1908, the appeal had abated and therefore, the impugned Judgment and Decree passed by the First Appellate Court was non est in the eye of law. 3. Per contra, the learned counsel for the respondent No.1(a) submits that the appeal was decided in favour of the deceased respondent No.2 herein and therefore, the death of the respondent No.2 herein will not alter the efficacy of the judgment passed by the First Appellate Court. 4. There is no representation for respondent No.2(b). 5. Order XXII Rule 3 of the Code of Civil Procedure, 1908 reads as follows: "Procedure in case of death of one of several plaintiffs or of sole plaintiff.- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff." 6. Since the sole surviving appellant died during the pendency of R.A. No.9/2006 and her legal representatives did not prosecute the appeal, the consequences were bound to follow, namely, that the appeal stood abated. The legal representatives of the deceased respondent No.2 herein / appellant in R.A. No.9/2006 were bound to come on record and pursue the appeal before the First Appellate Court. The impugned Judgment and Decree passed by the First Appellate Court in R.A. No.9/2006, therefore, deserves to be set aside and the case is to be remanded back to the First Appellate Court for reconsideration. Now that the legal representatives of the deceased respondent No.2 herein / appellant in R.A. No.9/2006 are brought on record in this appeal, the First Appellate Court shall treat the legal representatives of the deceased respondent No.2 herein as the appellants before it and dispose off the appeal, R.A. No.9/2006, in accordance with law. Hence, the following: ORDER This Appeal is allowed. The impugned Judgment and Decree dtd. 20/4/2006 passed by the Fast Track Court- III, Tumkur, in R.A. No.9/2006 is set aside and the case is remitted back to the First Appellate Court, who shall treat the legal representatives of the deceased respondent No.2 herein as the legal representatives of the deceased appellant before it and dispose off the appeal, R.A. No.9/2006, in accordance with law. The Parties are directed to appear before the First Appellate Court on 30/3/2022.