Kerala High Court
Uma Andarjanam And Ors. vs Neelakandan Namboodiri And Ors. on 20 March, 2001
Equivalent citations: AIR 2001 KERALA 314, (2001) ILR(KER) 2 KER 142, (2001) 1 KER LJ 721, (2001) 4 RECCIVR 763
JUDGMENT S. Marimuthu, J.
1. This appeal is filed questioning the judgment and decree delivered by the IIIrd Additional Sub-Judge, Ernakulam in A.S. No. 95/87. A.S. No. 95/ 87 was directed against the judgment and decree passed by the Munsiff, Ernakulam in O.S. No. 629 of 1982. That suit was filed by respondents 1 to 3 as plaintiffs for a permanent prohibitory injunction. The suit was decreed. The above appeal A.S. 95 of 1987 was filed by the first defendant and the lower appellate Court modified the decree of the trial Court. Now the present appeal has been filed by defendants 2 and 3.
2. The first defendant, who was the appellant in the lower appellate Court, died on 18-2-1990, when the appeal was pending before the lower appellate Court. Before her death, the appeal was heard in part on 1-1-1990 and thereafter if was posted to 2-1-1990 and then it was adjourned to 6-1-1990, On 6-1-1990, on hearing both the sides, the case was posted for disposal on 17-2-1990. On 17-2-1990, the matter was taken up and reopened on giving notice to both the learned counsel, And then it was posted for hearing on 20-8-1990. On 20-3-1990, both sides were heard and the case was posted for disposal on 24-3-1990. On 24-3-1990, the judgment was delivered by the lower appellate Court. As pointed out above, the appellant died on 18-2-1990. In this context, it is pertinent to look into Order 22, Rule 6, C.P.C. which reads as follows :--"No abatement by reason of death after hearing -- Notwithstanding anything contained in the foregoing rules, where the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."
3. According to the learned counsel for the respondents, the decree impugned is a nullity in view of the fact that it is passed against a dead person where Order 22, Rule 6, C.P.C. applies and therefore, the appeal has to be necessarily dismissed, for as noted above, there is no decree of the lower appellate Court to be appeal against. In such situation there arises no necessity to examine the other materials on record. Learned counsel appearing for the respondents-plaintiffs was also heard in this aspect.
4. In view of the submissions of both the learned counsel. I feel that a question of law as to the validity or otherwise of the decree of the lower appellate Court has arisen. Therefore, now, I will examine the position in this aspect. The meaning of the words "the conclusion of the hearing and the pronouncing of the judgment" employed in Order 22, Rule 6, C.P.C. is considered in the decision reported in 1961 Ker LT 196 : (AIR 1961 Kerala 290) (Kanaran Nambiar v. Ramunni Nambiar) as follows :--
"When argument on the case had once been heard, that did not culminate in the pronouncement of a judgment, and the case was again posted for fresh hearing of arguments, it cannot be said that the hearing of the case has been concluded. If any step for a final adjudication of the suit is pending in a case, the hearing of that case, in the connotation of that expression in the Code of Civil Procedure, has not been concluded."
As per the above the decisions when the party died after the case was reserved for judgment on hearing both the sides and the question of abatement shall not arise for the period between the date of the final hearing of the case i.e. conclusion and the prouncement of the judgment. But in the present case on hand, the party died before the conclusion of the trial and the judgment was delivered later on and therefore the judgment because a nullity. When it becomes a nullity, what is the next step to be followed is considered by this Court in the following judgments :
In C. Abdulla v. Damodaran Namododiri, 1972 Ker LT 53 : (AIR 1972 Ker 116), this Court held as follows :--
"We shall mention only one decision, namely, Bhagwat Prasad v. Bansi Mahton. AIR 1958 Pat 278, where a learned Judge of the Patna High Court has follows the decision of the Calcutta High Court mentioned above, In this connection, the decision of our Court by Vaidialingam J. in Meenakshy Pillayathiri Amma v. Lakshnii Amma, 1967 Ker LT 777 : (AIR 1967 Kerala 135) has also been brought to our notice. The learned Judge has considered several decisions and has held that in such a case (the facts in that case were not exactly similar the Court has inherent power under Section 151 of the Code of Civil Procedure read with Order 22 thereof to implead the legal representatives so as to do justice between the parties in the case before us the action of the Munsif in placing the case before the Subordinate Judge with a report can also be justified under Section 151."
In Assyamma v. Aisabi, 1976 Ker LT 101 this Court held thus :--
"On the death of the 2nd respondent, the appeal had abated and the decree passed by the first appellate Court in ignorance of this fact in the eye of the law is a nullity. Strictly speaking there was no decree to be appealed against. The proper course in the circumstances to be adopted is to set aside the ineffective decree of the first appellate Court. giving the appellant herein an opportunity to take such steps as are necessary to have the abatement set aside, if she is entitled to do so, and to have the matter proceeded with after bringing on record the legal representative of the deceased second respondent."
In Paru v. Devaki Varassiar, (1992 (2) Ker LT 687, it was held as follows :
"Here in this case the fact that the appellant died prior to the passing of the decree by the lower Appellate Court has become obvious. The legal representatives are attempting to file this Second Appeal. All that the Court can do is to indicate to the legal representatives that their proper remedy lies in moving the Lower Appellate Court with the necessary application form getting themselves impleaded and for getting a proper readjudication of the appeal. No principle of law enables or entitled the legal representatives straightway file a Second Appeal before this Court on an assertion that the decree of the lower Appellate Court passed against their predecessor-in-inter-est who was the sole appellant therein was a nullity. Even if the decision in the appeal was a nullity it could not set at naught the decree of the trial Court which was one against the predecessor-in-interest of the appellants in this Second Appeal."
5. In view of the above proposition of law. I have no hesitation to hold that the decree passed by the lower appellate Court becomes a nullity. When that be so, there is no necessarily to go into the judgment of the lower appellate Court and the appeal has to be dismissed and accordingly it is dismissed. No doubt, as per the principle laid down by this Court in the three decisions extracted above, the parties can move the lower appellate Court in bringing the legal representatives of the deceased-first respondent, who was the appellant in the lower appellate Court in accordance with law. And the lower appellate Court, when the legal representatives are brought on record in accordance with law, can further proceed and dispose of the appeal expeditiously.
Cross Objection also stands dismissed.