Sri. Shivananju Vs Sri. Boregowda

SRI. MANJUNATH S/O. LATE. NANJEGOWDA @ POTHEGOWDA AGED ABOUT 50 YEARS ALL ARE RESIDENTS OF KONGARA NANJAIAHNA HUNDI, KADKOLA VILLAGE, JAYAPURA HOBLI, MYSURU - 573001

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…PETITIONERS

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(BY SRI. ABUBACKER SHAFI., ADVOCATE)

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AND:

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SRI. BOREGOWDA S/O. HONGERE GOWDA, AGED ABOUT 70 YEARS, R/AT MADANE VILLAGE CHENNARAYAPATNA, HASSAN DISTRICT – 573 124 BY GPA HOLDER M.B. MANJEGOWDA

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…RESPONDENT

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(BY SRI. DESHRAJ FOR PROPOSED R1 TO R4)

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NC: 2026:KHC:6945 RP No. 467 of 2025

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HC-KAR

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THIS RP IS FILED UNDER ORDER 47 RULE 1 R/W SEC.114 OF CPC, PRAYING TO REVIEW THE JUDGMENT AND ORDER DATED 25.03.2025 PASSED IN RSA NO.568/2016 (SP) BY THIS HON’BLE HIGH COURT AND DISMISS THE SAME AS THE APPELLANT WAS DEAD ON 15.06.2018, THAT IS SEVEN YEARS PRIOR TO THE JUDGMENT AND ORDER DATED 25.03.2025, BY ALLOWING THIS REVIEW PETITION.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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

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ORAL ORDER

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This review petition is filed by the review petitioners

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to review the judgment dated 25.03.2025 passed by this Court in RSA No. 568 of 2016.

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Brief facts leading rise to the filing of this review petition are as follows:

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2.1. The respondent herein, aggrieved by the

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judgment and decree dated 19.12.2015 passed by the First Appellate Court in RA No. 376 of 2012, preferred a second appeal in RSA No. 568 of 2016. The said second appeal was allowed by this Court vide judgment dated 25.03.2025. It is contented that, the appellant therein

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NC: 2026:KHC:6945 RP No. 467 of 2025

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HC-KAR

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died on 15.06.2018. The legal representatives of the appellant were not brought on record until the adjudication of the case. The appeal was abated by the operation of law. The judgment and decree passed in RSA No. 568 of 2016 was in favour of the dead person. Hence, this review petition.

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Heard the arguments of learned counsel for the

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review petitioners and learned counsel for the respondent.

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Learned counsel for the petitioners submits that, the judgment passed by this Court is in favour of a dead person and therefore, the same is null in the eyes of law. Hence, on this ground, he prays to allow the review petition.

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Per contra, learned counsel for the respondent submits that, the death of the appellant in RSA was not intimated to the Court. The Court was under the impression that the appellant therein was alive. Hence, the Court proceeded to pass the said judgment. The judgment

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NC: 2026:KHC:6945 RP No. 467 of 2025

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HC-KAR

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passed by this Court in the aforesaid appeal is just and proper, and do not call for any interference. Hence, on these grounds, he prays to dismiss the review petition.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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The undisputed facts are that, the deceased respondent/appellant therein, aggrieved by the judgment and decree passed in RA No. 376 of 2012, preferred an appeal in RSA No. 568 of 2016. Learned counsel appearing for the deceased Boregowda did not bring it to the notice of the Court regarding the death of Boregowda. Learned counsel argued the matter as if Boregowda was alive. Considering the submissions made by the learned counsel for the parties, this Court proceeded to allow the appeal vide judgment dated 25.03.2025. In the review petition it is contented that, during the pendency of the second appeal, Boregowda died on 15.06.2018. The said judgment passed by this Court is in favour of a dead person. The said judgment could be nullity in the absence

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NC: 2026:KHC:6945 RP No. 467 of 2025

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HC-KAR

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of legal heirs being brought on record. As of the date of passing judgment by this Court, the appeal was abated by operation of law.

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The Hon'ble Apex Court had an occasion to consider the similar issue which involved in this case in the case of Vikram Bhalchandra Ghongade Vs. State of Maharashtra and others¹ , wherein the Hon'ble Apex Court held that, the judgment pronounced in the first appeal on 20.10.2010 was, thus, in favour of the parties who were no more alive. The said adjudication, therefore, amounted to a nullity and the same did not have the force of law. The Hon’ble Apex Court further held in paragraph No.13 as follows:

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“13. In our view, therefore, the appellant is justified in seeking execution of the decree passed by the trial Court on the premise that the decree passed by the first appellate Court was a nullity having been passed in favour of dead persons. We are fortified in this view by the decision in Bibi Rahmani Khatoon v. Harkoo Gope, wherein it was held as under:

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1 2025 SCC OnLine SC 2360

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NC: 2026:KHC:6945 RP No. 467 of 2025

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HC-KAR

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“If a party to a proceeding either in the trial Court of any appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings. Now, if the party to a suit dies and the abatement takes place, the suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it will have no impact on the judgment, decree or order against which the appeal or revision is preferred. In fact, such judgment, decree or order under appeal or revision would become final.”

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These observations though made in the context of abatement of proceedings, the same position would arise when the appellant/s expires prior to hearing of the appeal, which is subsequently allowed without the legal heirs being brought on record. In the case in hand, the judgment in favour of the deceased appellants would be a nullity in the absence of the legal heirs being brought on record and the judgment of the trial Court would be the one that would govern the rights of the parties. Hence, the decree passed by the trial Court would revive for being executed.”

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(Emphasis supplied)

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9. Therefore, the judgment passed in the aforesaid

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RSA is in favour of a dead person and the said judgment is

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