Kandiboina Veera Venkata Satyanarayana Vs Sri.kandiboina Adinarayana(Died)

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APHC010061332025

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IN THE HIGH COURT OF ANDHRA PRADESHAT AMARAVATI [3239] (Special Original Jurisdiction)

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FRIDAY, THE TWENTY FIFTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE

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PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY

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CIVIL REVISION PETITION NOS: 396, 405 AND 407 OF 2025

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Between:

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KANDIBOINA VEERA VENKATA SATYANARAYANA, S/O. LATE VENKATA RAJU, AGED 56 YEARS. AGRICULTURE COOLIE, R/O.D.NO. 1-145, VINAYAKUNI GUDI VEEDHI, CHERUKUMILLI VILLAGE, GOPALAPURAM MANDAL, WEST GODAVARI DISTRICT.

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KANDIBOINA NARASIMHA MURTHY, S/O. LATE VENKATA RAJU, AGED 51 YEARS. AUTO DRIVER, R/O. D.NO. 1-49, KOTHAPETA, CHERUKUMILLI VILLAGE,GOPALAPURAM MANDAL, WEST GODAVARI DISTRICT.

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KANDIBOINA RADHA KRISHNA, S/O. LATE VENKATA RAJU, AGED 49 YEARS. AUTO DRIVER, R/O. D.NO. 1- 41, NEAR VINAYAKA TEMPLE, CHERUKUMILLI VILLAGE, GOPALAPURAM MANDAL, WEST GODAVARI DISTRICT.

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KANDIBOINA SRINIVAS, S/O. LATE VENKATA RAJU, AGED 40 YEARS. COOLIE, AUTO DRIVER, R/O. D.NO. 1-41, NEAR VINAYAKA TEMPLE, CHERUKUMILLI VILLAGE, GOPALAPURAM MANDAL, WEST GODAVARI DISTRICT.

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GUDURI KRISHNA KUMARI, W/O. SRINIVASA RAO,

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2

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C.R.P. Nos.396, 405 AND 407 OF 2025 KSR,J

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AGED 47 YEARS, R/O. D.NO. 1-149, CHERUKUMILLI VILLAGE, GOPALAPURAM MANDAL, WEST GODAVARI DISTRICT.

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... PETITIONER(S)

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AND

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SRI KANDIBOINA ADINARAYANA ARAMJYOTHI, (DIED) 2. JUTTIGA JAGAJYOTHIJYOTHI, W/O LATE SATYANARAYANA, AGED ABOUT 67 YEARS,R/O CHITYALA, NEAR RAMALAUYAM TEMPLE,GOPALAPURAM MANDAL. WEST GODAVARI DISTRICT.

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MALLULA NELABALUDU, S/O. LATE NANCHARAIAH, AGED 83 YEARS. CULTIVATION, R/O. CHITYALA VILLAGE, GOPALAPURAM MANDAL, WEST GODAVARI DISTRICT.

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MALLULA LOKABALUDUDIED, DIED

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PETCHETI JIJIYABAI, W/O.NAGESWARA RAO, AGED 55 YEARS. CULTIVATION, R/O. DAMMENNU VILLAGE,UNDRAJAVARAM MANDAL, WEST GODAVARI DISTRICT. (NOTICE TO 1ST RESPONDENT IS NOT NECESSARY)

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...RESPONDENT(S):

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Counsel for the Petitioner(S):

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1.SIVA RAMA KRISHNA KOLLURU

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Counsel for the Respondent(S):

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1.MANGENA SREE RAMA RAO

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3

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C.R.P. Nos.396, 405 AND 407 OF 2025 KSR,J

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The Court made the following

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COMMON ORDER :-

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Since all these three Civil Revision Petitions are arising out of the Common Order, dated 03-12-2024 passed in I.A.Nos.52 to 54 of 2024 in I.A.No.604 of 2017 in O.S.No.142 of 2008 on the file of the court of Principal Civil Judge (Senior Division), Kovvur, they are being disposed of by way of this common order.

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2. Admittedly, the respondents No.1 and 2 herein have filed O.S.No.142 of 2008 on the file of the court of Principal Civil Judge (Senior Division), Kovvur, against the respondents No.3 to 5 herein seeking partition of the schedule property and for equal shares among the plaintiff Nos.1 and 2 respondents/defendants and for future profits to be determined separately and for costs.

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3. The trial court after hearing both sides, decreed the suit by judgment and decree, dated 02-07-2012, holding that the plaintiffs are entitled for partition and also entitled for 1/4^th share each by dividing the suit schedule property into four (4) equal shares among the plaintiff Nos.1 and 2 and defendant Nos.1 and 3 as defendant No.3 is the sole legal heir of deceased-2^nd defendant. Being aggrieved by the said Judgment, the defendants filed appeal vide A.S.No.190 of 2012 before the court of Additional District Judge, Kovvur and the same was dismissed by way of judgment and decree, dated 17.02.2017. After passing of the decree, plaintiff Nos.1 and 2 filed final decree petition under Order XXVI, Rule 13 read with Section 151 CPC. During pendency of the said Final Decree Application, 1^st plaintiff died intestate leaving behind them. While the matter stood thus, I.A.Nos.52 to 54 of 2024 were filed under Order VI Rule 17 CPC, Order XXII Rule 9 CPC and Section 5 of Limitation Act respectively seeking to condone

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4

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C.R.P. Nos.396, 405 AND 407 OF 2025 KSR,J

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the delay of 1052 days in filing the L.R application; to set aside the abatement and to implead the L.Rs. of the 1^st plaintiff. The court below by common order, dated 03-12-2024, dismissed the above three applications, which are impugned in these three Civil Revision Petitions, on the ground that the explanation offered by the petitioners is found to be not genuine, baseless and flimsy and does not appear sufficient to condone the delay of 1052 days. Further, the court below held that the conduct and approach adopted by the petitioners in seeking condonation of delay is casual and in fact, it can be said that no just and plausible explanation has been provided.

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4. The learned counsel for the revision petitioners vehemently argued that the court below erred in dismissing the applications as the scope of provision under Order XXII Rules 3 and 4 of CPC applies only to suits and appeal and it does not apply to Execution Proceedings, whereas in case of Execution Proceedings Order XXII Rule 10 CPC is applicable. Thus, the learned counsel prays this court to allow these Civil Revision Petitions.

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5. This Court perused the entire material papers on record. As rightly contended by the learned counsel for the petitioners that the legal representatives of the deceased-1^st plaintiff can be brought on record in the final decree proceedings even at a belated stage, as abatement does not operate even if the delay was caused in bringing the legal representatives of the deceased-1^st plaintiff in the final decree proceedings. In Perumal Pillai v. Perumal Chetty¹ , a Full Bench of the Madras High Court held that the impleading of the legal representatives of the deceased-defendant in the final decree proceedings is a legal formality, but it should be necessarily complied with delay in impleading legal representatives of the deceased does

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1 AIR 1951 Madras 701

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5

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C.R.P. Nos.396, 405 AND 407 OF 2025 KSR,J

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not operate abatement of suit. But, merely because abatement does not operate even though there is delay in impleading legal representatives, it cannot be said that there is no necessity for impleading them in the final decree proceedings. In Ripabala Dassi v. Sarajubale Choudhurani² , the Calcutta High Court categorically held that where a preliminary decree has been passed directing ascertainment of mesne profits and some of the plaintiffs died after it, the suit does not abate by reason of the non-substitution of the legal representatives of the deceased-1^st plaintiff within the time limited by law. It is also pertinent to note that in a catena of judgments of this court as well as other High Courts, it is clear that Order XXII Rule 10 only applies to the legal representatives to be brought on record in the final decree proceedings if one of the plaintiffs or defendants dies after the preliminary decree was passed and in such a case, there will not be any period of limitation for bringing the legal representatives on record in that final decree proceedings and they can be brought on record at any time before the final decree was passed. Therefore, in the considered opinion of this court, the court below ought to have taken the above fact into consideration before disallowing the applications and ought to have allowed the applications.

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6. In that view of the matter and in view of the above legal matrix, all these Civil Revision Petitions are liable to be allowed.

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7. Accordingly, all these Civil Revision Petitions are allowed setting aside the Common Order, dated 03-12-2024 passed in I.A.Nos.52 to 54 of 2024 in I.A.No.604 of 2017 in O.S.No.142 of 2008 by the learned Principal Civil Judge (Senior Division), Kovvur and consequently I.A.Nos.52 to 54 of 2024 are allowed accordingly. Further,

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