Kerala High Court
Appu, (Died), S/O.Thevan vs Ajayan, S/O.Lakshmi Srinivasan on 12 June, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
Wednesday, the 12th day of June 2024 / 22nd Jyaishta, 1946
UNNUMBERED.RSA NO. 1276 OF 2012(FILING NO.)
O.S 406/1989 OF THE PRINCIPAL MUNSIFF COURT ERNKULAM
A.S. 9/2004 OF THE DISTRICT COURT 11, ERNAKULAM
APPELLANT/SOUGHT TO BE IMPLEADED APPELLANTS
1. APPU,(DIED), S/O.THEVAN, POTTEKATTUPADATHU, VADUTHALA DESOM,
CHERANALLOOR VILLAGE, KANAYANNUR TALUK.
2. ADDL.APPELLANT: BABU V.A. (SOUGHT TO BE IMPLEADED) S/O.V.T.APPU,
VENGHAT THARA, KORUMKOTTA, VADUTHALA, COCHIN-23.
3. ADDL.APPELLANT. MAYA THILAKAN (SOUGHT TO BE IMPLEADED) D/O.V.T.APPU,
AGED 46, VENGHAT THARA, KORUMKOTTA, VADUTHALA, COCHIN-23.
4. ADDL.APPELLANT. SREEKALA SUGATHAN (SOUGHT TO BE IMPLEADED)
D/O.V.T.APPU, AGED 45, VENGHAT THARA, KORUMKOTTA, VADUTHALA,
COCHIN-23.
5. ADDL. APPELLANT. HEMALATHA VINOD (SOUGHT TO BE IMPLEADED)
D/O.V.T.APPU, AGED 42, VENGHAT THARA, KORUMKOTTA, VADUTHALA,
COCHIN-23.
6. ADDL.APPELLANT. JINO KUMAR (SOUGHT TO BE IMPLEADED) S/O.V.T.APPU,
AGED 40, VENGHAT THARA, KORUMKOTTA, VADUTHALA, COCHIN-23.
7. ADDL.APPELLANT SANTHA VIDYA SAGAR (SOUGHT TO BE IMPLEADED) W/O.VIDYA
SAGAR (LATE)VENGHAT THARA, KORUMKOTTA, VADUTHALA, COCHIN-23.
8. ADDL.APPELLANT. DIVYA SAGAR V. (SOUGHT TO BE IMPLEADED) D/O.VIDYA
SAGAR (LATE)VENGHAT THARA, KORUMKOTTA, VADUTHALA, COCHIN-23.
9. ADDL.APPELLANT. DIPU SAGAR (SOUGHT TO BE IMPLEADED) S/O.VIDYA SAGAR
(LATE)VENGHAT THARA, KORUMKOTTA, VADUTHALA, COCHIN-23.
RESPONDENTS/RESPONDENTS/DEFENDANTS
1. AJAYAN, S/O.LAKSHMI SRINIVASAN, POTTEKATTUPADATHU, VADUTHALA DESOM,
CHERANALLOOR VILLAGE, KANAYANNUR TALUK.PIN-682 034.
2. MOHINI, W/O.LATE RAJAPPAN, POTTEKATTUPADATHU, VADUTHALA DESOM,
CHERANALLOOR VILLAGE, KANAYANNUR TALUK.PIN-682 034.
3. SUNIL, S/O.LATE RAJAPPAN, POTTEKATTUPADATHU, VADUTHALA DESOM,
CHERANALLOOR VILLAGE, KANAYANNUR TALUK.PIN-682 034.
4. SURESH, S/O.LATE RAJAPPAN, POTTEKATTUPADATHU, VADUTHALA DESOM,
CHERANALLOOR VILLAGE, KANAYANNUR TALUK.PIN-682 034.
5. SUDHEER, S/O.LATE RAJAPPAN, POTTEKATTUPADATHU, VADUTHALA DESOM,
CHERANALLOOR VILLAGE, KANAYANNUR TALUK.PIN-682 034.
6. SANTHA,D/O.LATE RAJAPPAN, POTTEKATTUPADATHU, VADUTHALA DESOM,
CHERANALLOOR VILLAGE, KANAYANNUR TALUK.PIN-682 034.
This Unnumbered R.S.A ........./2012 (Filing No. 1276/2012) having
come up for orders on 12.06.2024 and upon hearing the arguments of Adv. M.
POLY MATHAI for the petitioners and Advs.P.B.ASOKAN, P.B. AJOY,
S.SREEKUMAR (ADUKKATH) for respondents 1 to 6 and Adv.P.B.KRISHNAN (AMICUS
CURIAE), the court on the same day passed the following:
(P.T.O)
"C.R."
K.BABU, J
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Unumbered RSA of 2012 (Filing No.1276 of 2012)
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Dated this the 12th day of June, 2024
ORDER
The short question that arises for consideration is
whether the legal representatives of an appellant in a
Regular Second Appeal are entitled to re-submit the
appeal which was returned for curing the defects.
2. The plaintiff in O.S.No.406 of 1989 on the file
of the Principal Munsiff's Court, Ernakulam, lost his
case. He challenged the judgment and decree before the
District Court, Ernakulam, by filing A.S.No.9 of 2004.
The District Court confirmed the decree of the Munsiff's
Court and dismissed the appeal. The original plaintiff
filed Regular Second Appeal before this Court
challenging the decree of the District Court within the
period of limitation. The Registry returned the Regular
Second Appeal on 31.07.2007 for curing the defects
Unumbered RSA of 2012
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within 15 days. The time for re-presentation of the
Regular Second Appeal expired on 15.08.2007. The
original plaintiff/the appellant died before re-presenting
the appeal. The legal representatives of the original
plaintiff/appellant on 26.09.2017 filed CMA No.744 of
2017 seeking to condone the delay of 1932 days in filing
the Regular Second Appeal. They also filed I.A.No.1938
of 2017 on 28.07.2017 to set aside the abatement of the
appeal along with CMA No.583 of 2017 to condone the
delay of 2030 days. On 20.08.2017, the legal
representatives of the appellant filed application seeking
their impleadment. They also filed an application to
condone the re-presentation delay.
3. This Court issued notice in the applications filed
by the legal representatives of the Original Appellant.
Notices were served on the respondents/defendants.
4. I have heard the learned counsel for the
appellants, the legal representatives of the original
appellant, and the learned counsel appearing for the
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respondents/defendants. The Court also sought the
assistance of the learned Senior Counsel Shri.
P.B.Krishnan,
5. Respondents raised a contention that as the
original appellant died after return of the appeal and
before re-presentation, his legal representatives are not
entitled to continue with the appeal and the remedy
available to them is to prefer a fresh appeal.
6. The learned counsel appearing for the legal
representatives of the original appellant submitted that
they have every right to continue with the proceedings.
7. The learned Senior Counsel Shri. P.B. Krishnan
submitted that there is no express provision in the Rules
of the High Court of Kerala, 1971, dealing with the re-
presentation of an appeal by the legal representatives.
The Senior Counsel further submitted that the provisions
of the Code of Civil Procedure are applicable in all
matters unless any other law prohibits the invocation of
any specific provision in the Code.
Unumbered RSA of 2012
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8. I have no doubt that for the purpose of moving
an application by the legal representatives of the
deceased appellant, the appeal will be deemed to have
been "instituted" though it was returned for curing the
defects. Therefore, necessarily, there is 'institution' of
the appeal in the present case.
9. This takes me to the question of entitlement of
the legal representatives to get themselves impleaded
and resubmit the appeal.
10. The solution lies in Section 146 of the Code of
Civil Procedure which reads thus:-
"146.Proceedings by or against representatives
Save as otherwise provided by this Code or by any law for
the time being in force, where any proceeding may be
taken or application made by or against any person, then
the proceeding may be taken or the application may be
made by or against any person claiming under him.
11. Section 146 which was introduced for the first
time in the 1908 Code lays down that where any
proceeding is taken or application made by or against any
Unumbered RSA of 2012
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person, then the proceeding may be taken or the
application may be made by or against any person
claiming under him unless otherwise provided by the
Code or any other law for the time being in force.
12. In Smt,Saila Bala Dassi v. Smt.Nirmala
Sundari Dassi [AIR 1958 SC 394], a four Judge Bench of
the Supreme Court observed that Section 146 was
introduced in the Code of Civil Procedure, 1908 with the
object of facilitating the exercise of rights by persons in
whom they come to be vested by devolution or
assignment, and being a beneficent provision it should be
construed liberally and so as to advance justice and not in
a restricted or technical sense.
13. The proceedings contemplated by Section 146
include an appeal. This is settled by the decision of the
Supreme Court in Saila Bala Dassi. In Saila Bala
Dassi an appeal filed by the judgment debtor against an
order directing execution of a mortgage decree was
sought to be continued by a person who had purchased
Unumbered RSA of 2012
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the mortgaged properties from the mortgagor after the
suit had been decreed. It was held that he was entitled to
prosecute the appeal under Section 146. The Supreme
Court observed that whoever was entitled to be but had
not been brought on record under Order 22 Rule 10 in a
pending proceeding would be entitled to prefer an appeal
against the decree or order passed therein, if his assignor
could have filed such an appeal and further, the right to
file an appeal must be held to carry with it the right to
continue an appeal which had been filed by the person
under whom the applicant claimed.
14. Following Saila Bala Dassi in Rajkumar Vs.
Sardari Lal and Ors. [(2004) 2 SCC 601], the Supreme
Court held that a lis pendens transferee though not
brought on record under Order 22 Rule 10 of the Code of
Civil Procedure is entitled to move an application under
Order 9 Rule 13 to set aside a decree passed against his
transferor - the defendants in the suit. In Chothy
Theyyathan Vs. John Thomas [AIR 1997 Kerala 249]
Unumbered RSA of 2012
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this Court held that proceedings that may be taken
against any person, could be taken against any person
claiming under him.
15. Section 146 therefore undoubtedly enables the
legal representatives of the deceased appellant to be
brought on record by invoking the relevant provisions
contained in Order 22 of the CPC and to carry on the
proceedings already instituted.
16. The principle emerges is that the right to file an
appeal must be held to carry with it the right to resubmit
the appeal which had been instituted by the person under
whom the applicants claim. No other law including the
Rules of the High Court of Kerala, 1971, prohibits the
invocation of Section 146 by the present applicants. The
question raised is answered in favour of the applicants
who are the legal representatives of the original
appellant.
Unumbered RSA of 2012
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Registry shall post the matter for consideration of
the applications moved by the legal representatives of the
original appellant.
Sd/-
K.BABU JUDGE
kkj
12-06-2024 /True Copy/ Assistant Registrar
