Karnataka High Court
Smt Shanthamma vs Smt Nagamma on 27 May, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:17822
RSA No. 2387 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO. 2387 OF 2011 (RES)
BETWEEN:
1. SMT. SHANTHAMMA,
W/O HANUMANTHAPPA,
AGED 56 YEARS.
2. SMT. YALLAMMA,
W/O MARUTHI KAJJERA,
AGED 29 YEARS,
R/A UDRI VODDIGERI VILLAGE,
SORABA TALUK.
3. SRI. YOGESH,
S/O HANUMANTHAPPA,
AGED 27 YEARS,
4. SMT. YASHODA,
Digitally
signed by R D/O HANUMANTHAPPA,
MANJUNATHA AGED 23 YEARS,
Location:
HIGH COURT
OF 5. SRI. MARUTHI,
KARNATAKA
S/O YELLAPPA,
AGED 36 YEARS,
APPELLANT NO.1, 3 TO 5 ARE
RESIDING AT AT HOSA GUDUGINAKOPPA
VILLAGE, SORABA TALUK.
...APPELLANTS
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NC: 2024:KHC:17822
RSA No. 2387 of 2011
(BY SRI. MITHUN GERAHALLI, ADVOCATE FOR A5 (A TO
C))
AND:
1. SMT. NAGAMMA,
W/O. KARIYAPPA,
AGED 64 YEARS,
2. SRI. HALESH,
S/O KARIYAPPA,
AGED 39 YEARS,
3. SMT. UMAKSHI,
D/O KARIYAPPA,
AGED 42 YEARS,
4. SMT. RENUKA,
D/O KARIYAPPA,
AGED 34 YEARS,
5. SMT. PARVATHI,
D/O KARIYAPPA,
AGED 29 YEARS,
ALL ARE RESIDING AT
HOSA GUDUGINAKOPPA VILLAGE,
SORABA TALUK.
...RESPONDENTS
(BY SRI. MAHESH R. UPPIN, ADVOCATE;
R3 TO R5 SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 12.7.2011 PASSED IN
R.A.NO.485/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE &
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NC: 2024:KHC:17822
RSA No. 2387 of 2011
JMFC., SORABA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED28.8.2007 PASSED IN
O.S.NO.243/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN) &
JMFC., SORAB.TRIAL COURT DECREED THE SUIT, APPELLATE
COURT DISMISSED THE APPEAL.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.Mithun Gerahalli and Sri. Mahesh R Uppin for
the contesting respondent Nos.1 and 2.
2. Appellant No.5 before this Court by name Maruthi is
said to have died during the pendency of the appeal before the
First Appellant court. The death of the 5th appellant was not
brought to the notice of the First Appellant Court and Judgment
and decree came to be passed by the First Appellate Court
which is the subject matter and the challenge in this second
appeal.
3. It is settled principles of Law and requires no
emphasis that decree passed against the dead person is a
nullity. Therefore, the judgment of the First Appellate Court
needs to be set aside solely on the said ground and the matter
NC: 2024:KHC:17822
needs to be remitted to the First Appellate Court for fresh
disposal in accordance with law, after permitting the appellants
to bring the LRs of the deceased 5th respondent Maruthi before
the First Appellate Court in accordance with law.
4. However, while filing the appeal, it is noticed that
instead of showing Maruthi as dead, the appeal came to be filed
before this Court in the name of the dead person again and
when the office has raised the objection with regard to
Vakalath, 5th respondent Parvathi's Vakalath is included for
and on behalf of the 5th appellant. Counsel admits that it is a
mistake that has happened and therefore, the same needs to
be ignored. Filing the Vakalath of the 5th respondent showing
that the 5th appellant perse was a gross mistake that has
occurred. The same can not be allowed to continue on record.
Accordingly, reasonable cost is to be imposed on the appellants
for curing the said mistake. Hence, the following:
ORDER
i) Appeal is allowed.
ii) Judgment and decree passed by the First Appellate
Court in RA.No.485/2007 is hereby set aside.
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iii) The matter is remitted to the First Appellate Court
for fresh disposal in accordance with law.
iv) Appellants are permitted to bring the LRs of the
deceased 5th appellant who are also 5th appellant before the
First Appellant Court in accordance with law.
iv) For the mistake that has been committed in filing
vakalath of 5th respondent as appellant No.5, a sum of
Rs.5,000/- is imposed as cost payable to the Karnataka State
High Court Legal Services Committee.
v) Parties shall appear before First appellate Court
positively without further notice on 20.06.2024.
Sd/-
JUDGE
LDC
CT: BHK
