Allowed

Ayisu v. Saidu Mohammed

Kerala HC16 Jul 2010SA/629/2002

Case brief

AI extract

What is this about?

In a second appeal regarding a property suit, the High Court of Kerala held that legal heirs of a deceased second respondent, who died while the appeal was pending at the lower appellate court, must be impleaded in that lower court, not in the High Court.

What did the court decide?

Impugned judgment set aside; matter remitted to lower appellate court for impleading legal heirs of deceased respondent and considering abatement.

Ayisu Vs Saidu Mohammed — Civil Procedure and Limitation | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.BHAVADASAN

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FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932

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SA.No. 629 of 2002() -------------------AS.272/1997 of ADDL.DISTRICT COURT, THRISSUR OS.378/1987 of ADDL.SUB COURT, IRINJALAKUDA

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APPELLANT(S):LEGAL REPRESENTATIVES OF PLAINTIFF AIDRU/APPELLANT:

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------------------------------------------------------------------------------------------------------------------ 1. AYISU, W/O.LATE AIDRU, THEWARAKKATTIL HOUSE, KAIPPAMANGALAM VILLAGE, P.O.KAIPPAMANGALAM - 680 681, KODUNGALLUR TALUK, TRICHUR DISTRICT. ( D I E D)LRS RECORDED:*

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IT IS RECORDED THAT THE 1ST APPELLANT DIED AND APPELLANTS 2 TO 7 ARE THE LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT AS PER ORDER DTD. 30/07/03 IN MEMO

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CF 3069/03 DTD. 9/07/03.

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2. ABDULLA, S/O.LATE AIDRU, -DO- -DO- DO- -DO-

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3. HAMSA, S/O.LATE AIDRU, -DO- -DO- -DO- -DO-

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4. KOCHUKADEEJA, D/O.LATE AIDRU, -DO- -DO- -DO- -DO-

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5. SUHARA, D/O.LATE AIDRU, -DO- -DO- -DO- -DO-

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6. RAMLA, D/O.LATE AIDRU, -DO- -DO- -DO- -DO-

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7. SAFIA, D/O.LATE AIDRU, -DO- -DO- -DO- -DOBY ADVS. SRI.N.SUBRAMANIAM, SRI.M.S.NARAYANAN, SRI.P.T.GIRIJAN, SMT. USHA NARAYANAN.

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RESPONDENT(S): DEFENDANTS/RESPONDENTS:

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------------------------------------------------------------------------1. SAIDU MOHAMMED, S/O.JAINIKUTTY, CHOOLUKKARAN HOUSE, P.O.KAIPPAMANGALAM, KAIPPAMANGALAM VILLAGE AND DESOM, KODUNGALLUR TALUK, TRICHUR DISTRICT.

Kss

.2/-

...2....

S.A.NO.629/2002

2. AMMU KUNJU, S/O.MOHAMMED, VIPPINPADATH HOUSE, P.O.SANTHIPURAM - 680 668, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, TRICHUR DISTRICT.

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3. RABIA, W/O.ISMAIL, CHANDANAPARAMBIL HOUSE, NATTIKA VILLAGE, P.O.NATTIKA - 680 572, CHAVAKKAD TALUK, TRICHUR DISTRICT.

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4. ISMAIL, S/O.MUHAMMED MUSALIYAR, CHANDANAPARAMBIL HOUSE, NATTIKA VILLAGE, P.O.NATTIKA - 680 572, CHAVAKKAD TALUK, TRICHUR DISTRICT.

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R3 & R4 BY ADVS. SRI.S.VINOD BHAT, SRI.K.MADHAVAN.

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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P.BHAVADASAN, J.

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S.A. No.629 OF 2002

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Dated this the 16^th day of July, 2010

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JUDGMENT

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Legal heirs of the plaintiff in O.S.No.378 of 1987 before the Subordinate court, Irinjalakuda are the appellant. It is unnecessary to go in to details for the simple reason that this appeal can be disposed of on a short ground.

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Notice to 2^nd respondent has returned with endorsement that “he is no more”. The appellant, therefore, filed 3 petitions as C.M.P.Nos.1185,1186, and 1187 of 2003, to implead the legal heirs of deceased 2^nd respondent, to set aside the abatement and to condone delay in filing the application. In the affidavit filed in support of the application, it is stated that the 2^nd respondent died on 25.9.2000. From the records, it is disclosed that the lower appellate court passed its judgment on 29.5.2002 that means the death of the respondent occurred while appeal was pending before the lower appellate court.

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The legal heirs of the second respondent can be

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S.A. No.629 OF 2002

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impleaded only in the court in which the matter was pending at the time of his death. Necessarily the matter will have to go back to the lower court.

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In the result, appeal is allowed. The impugned judgment and decree set aside and the matter is remitted to the lower appellate court for fresh consideration in accordance with law. Petitions for impleading the legal heirs, abatement and to condone the delay in filing the application filed before this court and counter filed, if any, shall be forwarded to that court. Parties shall appear before the lower appellate court on 18.8.2010.

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P.BHAVADASAN, JUDGE

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mns

Ayisu v. Saidu Mohammed

Case brief

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Ayisu v. Saidu Mohammed

Case brief

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