Erabovi vs Shivagangamma
2022 Latest Caselaw 5583 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR. JUSTICE R NATARAJ

              R.S.A. NO.1493/2019(INJ)

BETWEEN:
ERABOVI
SINCE DEAD BY HIS LR YALLAMMA
AGED ABOUT 48 YEARS
D/O LATE ERABOVI
HARENAHALLI
HANDANAKERE HOBLI
CHIKKANAYAKANAHALLI TALUK
TUMAKUR DISTRICT-572101.
                                         ...APPELLANT
(BY SMT. SHRUTHI S.P., ADV. FOR
    SRI.VINAYA KEERTHY M., ADV.)

AND:

1 . SHIVAGANGAMMA
    AGED ABOUT 70 YRS
    W/O LATE ESWARAPPA
    MADIHALLI
    SHETTIKERE HOBLI
    CHIKKANAYAKANAHALLI TALUK
    TUMAKURU DISTRICT-572101.

2 . SIDDEGOWDA
    AGED ABOUT 66 YEARS
    S/O SIDDALINGAPPA
    HARENAHALLI HOBLI
    CHIKKANAYAKANAHALLI TALUK
    TUMAKURU DISTRICT-572101.
                                      ...RESPONDENTS

      THIS RSA IS FILED UNDER SECTION.100 R/W ORDER
XLII OF CPC 1908 AGAINST THE ORDER DATED 27.05.2019
                                 2

PASSED IN RA.NO.09/2016 ON THE FILE OF THE SENIOR
CIVIL  JUDGE    AND   JMFC,  CHIKKANAYAKANAHALLI
DISMISSING THE IA AND ABATING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 23.11.2015
PASSED IN OS.NO.46/2007 ON THE FILE OF THE PRL.CIVIL
JUDGE AND JMFC, CHIKKANAYAKANAHALLI.

     THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is filed by the legal representative of the

deceased-defendant challenging the judgment and decree

of the trial Court in O.S.No.46/2007.

2. The suit in O.S.No.46/2007 was filed for

perpetual injunction and the same was decreed in terms of

the judgment and decree dated 23.11.2015 and the appeal

was filed by the defendant before the First Appellate Court

in RA No.09/2016. The defendant died during the pendency

of the proceedings before the First Appellate Court. The

legal representative of the defendant filed an application

under Order XXII Rule 3 to be impleaded. However, the

First Appellate Court held that since the suit is for perpetual

injunction, the cause of action abated after the death of

defendant and hence held that the appeal had abated.

3. Being aggrieved by the aforesaid judgment and

decree of the First Appellate Court, the present regular

second appeal is filed.

4. The office has raised an objection regarding

maintainability of the appeal as the first appeal before the

First Appellate Court was not decided on merits but it was

disposed off as having abated.

5. As rightly observed by the Registry, this appeal

is not maintainable as the appeal before the First Appellate

Court had abated in view of the death of the defendant.

Hence, the office objection raised regarding maintainability

of the appeal is upheld.

This appeal is dismissed.

It is however open for the defendant to avail such

other remedies as are available in law.

Sd/-

JUDGE

HA/-