Allowed

Smt. Kadaramma W/O Sri. Kadaraiah v. Sri Siddaiah Since Dead by His Lr

Karnataka HC5 Jun 2013RSA/1088/2011

Case brief

AI extract

What is this about?

This single judge appellate order allowed the appellant's appeal challenging a lower appellate decree. The High Court held that the lower decree was a nullity because legal representatives of deceased respondents were not brought on record and no notice was issued to them as required under Order 22 Rule 4 CPC. The decree was set aside and the matter remitted.

What did the court decide?

The judgment and decree in R.A.No.4/2006 dated 25.1.2011 were set aside; the matter was remitted to the First Appellate Court to consider Application IA-2 and proceed further in accordance with law.

Smt. Kadaramma W/O Sri. Kadaraiah Vs Sri… — Succession and Inheritance | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 5^th DAY OF JUNE, 2013

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BEFORE

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THE HON'BLE MR. JUSTICE S.ABDUL NAZEER

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R.S.A.No.1088 OF 2011 (SP)

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BETWEEN:

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SMT. KADARAMMA W/O SRI. KADARAIAH D/O SRI CHIKKANNA AGED ABOUT 57 YEARS, R/A YELEDASANAHATTI, HAMLET OF UNAGANALA HAGALAWADI HOBI, GUBBI TALUK, TUMKUR DIST-572216.

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… APPELLANT

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(By Sri.U.SHIVAKUMAR, ADV. FOR M/S. S & S ASSOCIATES)

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AND:

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1 SRI SIDDAIAH SINCE DEAD BY HIS LR

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SMT. PUTTAMMA W/O LATE SIDDAIAH AGED ABOUT 55 YEARS, HAMLET OF UNAGANALA HAGALAWADI HOBLI, GUBBI TALUK, TUMKUR DIST.572216

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2 SRI. DODDAIAH (DIED DURING THE PENDENCY OF THE ORIGINAL SUIT WITHOUT LEAVING BEHIND ANY LEGAL REPRESENTATIVES) ...RESPONDENTS

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(By Sri.M.B.CHANDRACHOODA, ADV. FOR R1)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.1.2011 PASSED IN R.A.NO.4/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 4.10.2002 PASSED IN O.S.NO.88/1990 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., GUBBI.

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THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is directed against the judgment and decree in R.A.No.4/2006 dated 25.1.2011 on the file of the Senior Civil Judge at Gubbi, confirming the judgment and decree in O.S.No.88/1990 on the file of the Civil Judge (Jr.Dn.) & JMFC at Gubbi

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The appellant herein filed the above suit against Doddaiah and Siddaiah for specific performance of the agreement dated 7.11.1982 and for injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property. During the pendency of the suit, the defendants died. Smt.Puttamma W/o Siddaiah was brought on record as the LR of defendant No.2. The suit was dismissed on 4.10.2002. The plaintiff filed an appeal in R.A.No.4/06 before the First Appellate Court challenging the said decree. Smt. Puttamma was arrayed as the respondent in

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the appeal. Smt. Puttamma died during the pendency of the appeal on 14.4.2009. Therefore, the appellant made an application-IA No.2 under Oder 22 Rule 4 of the CPC to bring Smt. Lakshmamma as the legal representative on record. Admittedly, no notice was issued to Lakshmamma on the said application. On the other hand, notice appears to have been issued to Smt. Rangamma who is said to be the 2^nd wife of Siddaiah. The Lower Appellate Court did not allow the application-IA No.2. The Lower Appellate Court had dismissed the appeal on 25.1.2011. The said judgment and decree is under challenge in this appeal.

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While admitting the appeal, this court has framed the following substantial question of law:

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“Whether the judgment and decree of the Lower Appellate Court is nullity, since LR's of the respondents were not brought on record?”

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Learned counsel for the appellant would contend that admittedly Puttamma had died during the pendency of the appeal. Though an application IA-2 was

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filed to bring Lakshmamma on record as LR of Puttamma, the application was not allowed. In fact, notice was also not issued to Lakshmamma on IA-2. Thus, the decree is a nullity.

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On the other hand, learned advocate appearing for the respondents has sought to justify the impugned judgment and decree.

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Materials on record would clearly show that appeal was filed by Smt.Kadaramma before the first Appellate Court arraying Puttamma as the LR of Siddaiah, 2^nd defendant. Admittedly, Puttamma died during the pendency of the appeal and an application IA-2 was filed to bring on record Smt. Lakshmamma as the LR of Puttamma. It is also clear that no notice was issued on the said application to Smt. Lakshmamma. On the other hand, notice appears to have been issued to one Smt. Rangamma. She was represented through her learned advocate. She was also not brought on record as IA-2 was not considered by the First Appellate Court. Thus, it is clear that the judgment and decree passed by the First Appellate Court against the dead person is a nullity. The substantial

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question of law is answered accordingly. I am of the view that the First Appellate Court has to consider the application IA-2 in accordance with law and thereafter the appeal on its merits.

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In the result, the appeal succeeds and it is accordingly allowed. The judgment and decree in R.A.No.4/2006 dated 25.1.2011 on the file of the Senior Civil Judge at Gubbi, is hereby set aside. The matter is remitted back to the First Appellate Court for fresh disposal in accordance with law. The First Appellate Court is directed to consider the application IA-2 and thereafter proceed further in the matter in accordance with law. No costs.

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Sd/JUDGE

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KLY/

Smt. Kadaramma W/O Sri. Kadaraiah v. Sri Siddaiah Since Dead by His Lr

Case brief

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Smt. Kadaramma W/O Sri. Kadaraiah v. Sri Siddaiah Since Dead by His Lr

Case brief

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