Karnataka High Court
Smt. M. Girija vs Smt. B. S. Nagarathnamma on 25 September, 2025
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 25TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE DR. JUSTICE K.MANMADHA RAO
WRIT PETITION NO.14525 OF 2021 (GM-CPC)
BETWEEN:
SMT. M. GIRIJA
W/O S. SUNDAR
AGED ABOUT 51 YEARS
R/AT. MEGALADODDI BEEDI
MADDUR TOWN
MANDYA DISTRICT-570001.
...PETITIONER
(BY SRI. AKARSH KUMAR GOWDA, ADVOCATE FOR
SRI. SUNIL K.N. ADVOCATE)
AND:
1. SMT. B.S. NAGARATHNAMMA
W/O ANGADI SRINIVAS
AGED ABOUT 76 YEARS.
SINCE DEAD REP. BY LR'S.
2. SRI. KRISHNAMURTHY
S/O ANGADI SRINIVAS
AGED ABOUT 44 YEARS
BUSINESS.
3. SMT. THAYAMMA
W/O DUDRAYYA
AGED ABOUT 40 YEARS
HOUSE WIFE.
-2-
RESPONDENTS 1 TO 3 ARE R/AT.
CHANNASANDRA VILLAGE GORAVANAHALLI POST, MADDUR TALUK MANDYA DISTRICT-570001.
[AMENDED AS PER THE ORDER DTD: 20.01.2025]
4. SRI. S. PADMANBHA S/O ANGADI SRINIVASA AGED MAJOR R/AT. NO.326, GAYATHRI NILAYA 2ND MAIN, 1ST CROSS NEW BDA LAYOUT BENGALURU-560085.
...RESPONDENTS (BY SRI. K.M. MANOHAR & SRI. C.V. MANJUNATH, ADVOCATES FOR R2 TO R4 V/O/DTD:20.01.2025, R2 TO R4 ARE TREATED AS LR'S OF DECEASED R1) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.01.2021, MADE ON IA FILED ON 01.01.2018 IN RA NO.51/2008, PASSED THE SENIOR CIVIL JUDGE, MADDUR, VIDE ANNEXURE-D & ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.09.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
-3-
CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV ORDER This writ petition is filed to quash the Order dated 28.01.2021, made on I.A filed on 01.01.2018 in R.A.No.51/2008, on the file of the Senior Civil Judge, Maddur.
2. The petitioner herein is the appellant in R.A. No.51/2008 and respondent in RSA No.1773/2015.
3. Brief facts of the case are as follows:
The interim applications dated 01.01.2018 are filed by the applicant under Order XXII Rule 9 read with Section 151 of the Code of Civil Procedure, 1908, Order XXII Rule 4 read with Section 151 of CPC, and Section 5 of the Limitation Act, seeking to set aside the abatement caused by the death of the respondent (who died on 25.12.2010), to bring his legal representatives (LRs) on record, and to condone the delay in filing such applications.
In the accompanying affidavit, the applicant states that she had preferred R.A.No.51/2008 on the file of the -4- Senior Civil Judge, Maddur, ('appellate Court' for short) challenging the judgment and decree in O.S.No.33/2007 on the file of the Principal Civil Judge and JMFC, Maddur ('trial Court' for short). The R.A.No.51/2008 was allowed by the appellate Court on 15.10.2011. Pursuant thereto, the petitioner filed Ex.Case No.26/2012 before the Principal Civil Judge (Jr. Dn.), Maddur, seeking execution of the judgment and decree dated 15.10.2011. During subsequent execution proceedings, the applicant became aware that the original respondent, Angadi Srinivasa, had died during the pendency of the appeal. She states that neither the Court nor any party had intimated her of his death earlier. Upon discovering this, she impleaded the respondent's LRs in the execution case.
The LRs of original respondent thereafter filed RSA No.1773/2015 before this Court, challenging the judgment and decree dated 15.10.2011 passed in R.A.No.51/2008. By judgment dated 23.04.2016, this Court allowed the appeal on the ground that the original defendant, Angadi Srinivasa, had expired on 25.12.2010, during the -5- pendency of R.A.No.51/2008, and that his legal representatives were not brought on record before the first appellate Court. It was held that the decree passed in favour of the petitioner was against a dead person, and hence, the same was a nullity in law.
4. Learned counsel for the petitioner submits that the reason for not bringing the legal representatives of deceased Angadi Srinivasa on record in R.A.No.51/2008 was that she was not aware of his death and was never informed of the same. After disposal of RSA No.1773/2015, the petitioner filed applications dated 01.01.2018 under Order XXII Rule 4 read with Section 151 CPC, seeking to bring the respondents on record as legal representatives, condone the delay, and set aside the abatement.
5. The LRs of the deceased respondent have filed objections stating that the judgment and decree passed by the first appellate Court in R.A.No.51/2008 has already been declared null and void by this Court, and therefore, the appeal itself does not survive. They contend that once -6- the decree is quashed, there is no scope for bringing the LRs on record, and the only remedy left for the applicant is to file a fresh suit. They also argued that the delay has not been satisfactorily explained and seek dismissal of the interim applications dated 01.01.2018 with costs.
6. The first appellate Court observed that upon consideration, it was noted that although counsel for the applicant argued in support of the applications, counsel for the respondent's LRs remained absent, and hearing was taken as nil. The applicant was examined as PW1, and the LRs chose not to cross-examine.
7. The records show that the O.S.No.33/2007 seeking ejectment and eviction was dismissed on 09.07.2008. The appeal in RA No.51/2008 was allowed on 15.10.2011, decreeing the suit. However, it has already been judicially determined in RSA No.1773/2015 that the decree passed in the appeal was against a deceased person, rendering it a nullity. Accordingly, the appellate -7- Court's decree has ceased to exist in law, and the appellate Court has become functus officio.
8. Further, the substantial question of law was raised for consideration of this Court in RSA No.1773/2015 as under:
Whether the decree passed by the Lower Appellate Court in ignorance of the death of the respondent before it is substantial in law?
9. It is observed by this Court in RSA No.1773/2015 that Order XXII Rules 1 to 4 of the Code of Civil Procedure govern the procedure in cases of death of parties to a suit. Legal representatives of the deceased can be brought on record within 90 days of death, as mandated under Article 120 of the Limitation Act, 1963. Upon failure to do so, abatement occurs automatically by operation of law under Order XXII Rule 4(3) CPC, without the necessity of a court order. Further, an application to set aside such abatement must be filed within 60 days thereafter, as per Article 121 of the Limitation Act, 1963. -8-
10. The Andhra Pradesh High Court in Mohd. Safdar Shareef (Died) per L.Rs. and Others v. Mohammed Ali (Died) PER L.Rs., reported in 1993(1) ALT 522, held that once an appeal abates by operation of law, it cannot be revived, and a decree passed against a dead person is a nullity. Likewise, the Hon'ble Supreme Court in State of Punjab v. Nathu Ram, reported in AIR 1962 SC 89, interpreting Order XXII Rule 4(3) CPC read with Rule 11 of CPC, held that an appeal abates against a deceased respondent where no application is made within the prescribed time to bring his legal representatives on record.
11. Further, Order XXII Rule 4(4) of CPC empowers the Court to exempt substitution where the deceased defendant neither filed a written statement nor contested the suit. In the present case, the defendant had not filed any written statement and was placed ex parte. The suit was dismissed by the trial Court. During pendency of the appeal, the defendant expired on 25.12.2010. However, the appellant did not seek exemption under Order XXII -9- Rule 4(4) of CPC before the pronouncement of judgment by the first appellate Court on 15.10.2011.
12. As the sole respondent died during pendency of the appeal and his legal representatives were not brought on record, the appeal stood abated and the judgment and decree passed by the first appellate Court are against a dead person and hence second appeal was allowed and the impugned judgment and decree dated 15.10.2011 were declared null and void.
13. Hence, it was held that the interim applications dated 01.01.2018 filed to set aside the abatement and bring LRs on record in RA No.51/2008 was held not maintainable and rejected.
14. In light of the above, the applicant seeks to bring the LRs of original respondent on record in RA No.51/2008 and reopen the first appeal, praying for condonation of the delay.
15. It is contended by the learned counsel appearing for the petitioner that the rejection of the
- 10 -
application for bringing the LRs on record on the sole premise that this Court, in RSA, had held the judgment in R.A.No.51/2008 to be a nullity, thereby rendering the Court below functus officio, is erroneous and unsustainable. The learned Judge misinterpreted the order of this Court, as the declaration of nullity was only on account of non-substitution of LRs before disposal of the appeal, which should properly be construed as abatement of the appeal, leaving scope for revival upon setting aside such abatement. The Court below further erred in disregarding the reasons assigned by the petitioner for the delay in substitution and in holding that it lacked jurisdiction to entertain the request, thereby committing a legal error.
16. Heard learned counsel appearing for the petitioner, on perusal of the material placed on record and on perusal of the impugned Order dated dated 28.01.2021, made on I.A filed on 01.01.2018 in R.A.No.51/2008, it is observed that the first appellate Court has not considered the applications dated
- 11 -
01.01.2018 filed by the applicant under Order XXII Rule 9 read with Section 151 of CPC, under Order XXII Rule 4 read with Section 151 of CPC and Section 5 of Limitation Act to set aside the abatement made against the L.Rs of the respondent and to bring the L.Rs of the deceased respondent who died on 25.12.2010 on record and further, it is observed that though the regular second appeal was set aside the Judgment in R.A.No.51/2018 on the sole ground of the consideration of substantial question of law raised by the petitioners that "Whether the decree passed by the lower appellate Court, in ignorance of the death of the respondent before it is substantiable in law?" and also obserfed that the sole respondent having died during the pendency of the appeal, the lower appellate Court and as his legal representatives were not brought on record, the appeal abated and hence, the decree passed by the lower appellate Court being against a dead person is a nullity.
17. In view of the above observations, the RSA No.1773/2015 was allowed and in continuation to that the petitioners filed the above I.A before the first appellate
- 12 -
Court and dismissed the I.A. erroneously and without giving any proper reasons.
18. In view of the above discussions, this Court intends to interfere in the impugned Order dated 28.01.2021, made on I.A filed on 01.01.2018 in R.A.No.51/2008, on the file of the Senior Civil Judge, Maddur.
19. Hence, the writ petition is allowed with the following directions:
a) The impugned order dated 28.01.2021, made on I.A filed on 01.01.2018 in R.A.No.51/2008, on the file of the Senior Civil Judge, Maddur, is set aside and the matter is remitted back to the first appellate Court for a fresh consideration.
b) It is directed to give opportunity to the parties and pass appropriate reasonable Order in accordance with the provisions under Order XXII Rule 4 and 9 of CPC and also under Section 5 of the Limitation Act and also to pass
- 13 -
an Order in pursuant to the Judgment in RSA No.1773/2015.
c) The trial Court shall dispose of the matter as expeditiously as possible, i.e., within a period of four months from the date of the receipt of the Order.
Sd/-
(DR.K.MANMADHA RAO) JUDGE BNV