Mrs Irene D Souza Vs Smt Sumathi Chidananda

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 2.7.2013 PASSED IN R.A.NO.291/2004 ON THE FILE OF II ADDITIONAL DISTRICT JUDGE, D.K, MANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 23.2.1995 PASSED IN OS.NO.228/1981 ON THE FILE OF III ADDITIONAL MUNSIFF, MANGALORE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 02.07.2013 passed in R.A.No.291/2004 by II Additional District Judge, D.K., Mangaluru.

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For convenience the parties are referred to

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based on their rankings before the trial Court. The appellants were the plaintiffs and the respondent was the defendant.

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NC: 2025:KHC:26550 RSA No. 1564 of 2013

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HC-KAR

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Brief facts leading rise to the filing of this

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appeal are as follows:

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The plaintiffs have filed suit for a perpetual injunction restraining the defendant from obstructing and objecting the plaintiffs, from putting up a barbed wire fence on the eastern side of the schedule property. The said suit was decreed with costs vide judgment dated 23.02.1995. The defendant aggrieved by the judgment and decree passed in O.S.No.228/1981 preferred, an appeal in R.A.No.291/2004 on the file of II Additional District Judge, D.K. Mangaluru.

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During the pendency of the appeal respondent

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No.4 therein, passed away, on 16.04.2003. The first appellate Court allowed the appeal by setting aside the judgment of the trial Court. It is contended that the judgment passed by the first appellate Court is against a dead person. Hence, the matter requires reconsideration by the first appellate Court. Though a notice was issued to

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NC: 2025:KHC:26550 RSA No. 1564 of 2013

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HC-KAR

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the respondents and despite the service of notice, none

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appears for the respondent.

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This Court admitted the appeal as to consider

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the following Substantial Question of Law:

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“Whether the appellants prove that the judgment and decree passed by the First Appellate Court is against the dead person?”

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Admittedly, the plaintiffs have filed a suit for a

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perpetual injunction against the defendant and the said suit was decreed by the trial Court vide judgment dated 23.02.1995. The defendant aggrieved by the judgment and decree passed in O.S.No.228/1981, filed an appeal in 1995 and it was re-numbered as R.A.No.291/2004. The first appellate Court, reversed the judgment and decree, passed by the trial Court and consequently, dismissed the suit of the plaintiffs. During the pendency of the appeal in R.A.No.291/2004 respondent No.4 therein died. The appellants have produced a copy of the death certificate of respondent No.4 therein, wherein he passed away on

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5 - NC: 2025:KHC:26550 RSA No. 1564 of 2013

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HC-KAR

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16.04.2003. The judgment passed against a dead person without proper substitution of representation is considered null and void (nullity), because no legal proceeding can validly be initiated of continued against a non-existent or deceased entity.

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The judgment passed by the first appellate

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Court is against a dead person. Hence, on this ground alone the impugned judgment passed by the first appellate Court is liable to be set aside.

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In view of the above discussion, I answer the

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point for consideration in the affirmative.

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Accordingly, I proceed to pass the following:

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ORDER

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(i) The appeal is allowed.

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(ii) The judgment and decree dated 02.07.2013 passed in R.A.No.291/2004 by the II Additional District Judge, D.K. Mangaluru, is set aside.

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HC-KAR

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(iii) The Appeal in R.A.No.291/2004 is restored to its original file.

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(iv) The appellants in R.A.No.291/2004 are permitted to bring the legal representatives of deceased respondent No.4 in the regular appeal No.291/2004 and thereafter the first appellate Court is directed to pass the judgment in accordance with law.

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It is made clear that this Court has not passed

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judgment on the merits in issues.

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All the contentions of the parties are kept open.

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The Office is directed to transmit the trial Court records to the first appellate Court.

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Sd/(ASHOK S.KINAGI) JUDGE

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BVK