@JUDGMENTTAG-ORDER
P.S. Narayana, J.@mdashHeard Sri Padala Vijay Kiran, the counsel representing the review petitioner and Sri Subhashchandra Bose, the counsel representing the first respondent.
2. In view of the facts and circumstances explained, the delay in filing the review CMP is hereby condoned, and C.M.P. No. 21012/2003 is ordered accordingly.
3. Both the counsel made elaborate submissions on the merits and demerits of the review CMP. The petitioner in the review CMP filed the same as against the judgment and decree made in S.A.No. 692 of 1994 dated 25-2-2003 on the ground that the second appellant died, about three years ago on 8-3-1996 and no steps were taken by the appellants and thus the appeal stands abated. As the first appellant being the wife of deceased-second appellant cannot plead ignorance of the death of her husband and hence the order of remand made by this court would cause irreparable loss and consequently a request is made to review the said judgment and decree made in S.A.No. 692 of 1994 dated 25-2-2003.
4. The petitioner in the review CMP filed O.S.No. 427 of 1987 on the file of Principal District Munsif, Srikakulam, against the first respondent and her husband praying for the relief of perpetual injunction. The court of first instance dismissed the suit and aggrieved by the same, A.S.No. 45 of 1990 on the file of Additional Subordinate Judge, Srikakulam, was preferred, which was allowed and aggrieved by the same, this second appeal was filed. It is stated that during the pendency of appeal, the second appellant, husband of first appellant in the second appeal, died on 8-3-1996 and the same was intimated to her Advocate Sri Umamaheswar Rao at Srikakulam. Subsequent thereto, the said Advocate also died and that she has been under the bonafide impression that the said Umamaheshwar Rao had conveyed the information of death of her husband to her counsel at Hyderabad. It is further stated that after the disposal of the second appeal only, she came to know that her Advocate at Srikakulam had not intimated about the death of her husband and it is a bonafide mistake. Even otherwise, it is stated that the suit property is registered in her name only by registered sale deed dated 16-9-1985.
5. The facts are not in controversy. The relationship between the first appellant and the second appellant is that of wife and husband and evidently to avoid the remand order, the present review CMP was thought of by the petitioner. It is also not in controversy that the suit property is registered in the name of the wife only. Even otherwise the wife is already on record representing the estate. Serious contention was advanced by Sri Vijay Kiran that inasmuch as it is an indivisible cause of action it should be taken that the appeal as a whole abated for non-bringing of the legal representatives of the decased-appellant No. 2 on record. The suit for perpetual injunction in ordinary legal parlance is understood as a mere personal action. Even otherwise, on facts, it is clear that the suit property is registered in the name of wife only by virtue of registered sale deed dated 16-9-1985.
6. In
"Where during pendency of second appeal, the appellant died and his LRs were not brought on record, but the High Court disposed of the second appeal without knowing of the death of the appellant, the said second appeal abated and judgment and decree of the first appellate court became final and in such case, there cannot be merger of the judgment and decree made in second appeal with that passed in first appeal."
7. Strong reliance was also placed in Regi Gorge v. Bhaskaran Nair 1998(4)CCC 607(Ker.). In
"Where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants and all or several of the plaintiffs or defendants appeal against the decree, the appellate court can, in view of the provisions of O.41 R.4, proceed with the appeal and reverse the decree of R.4, proceed with the appeal and reverse the decree of the trial court in spite of the omission to bring on the record the heirs of one of the appellants who dies during the pendency of the appeal."
8. In
"Where appeal was decided on merits by Supreme Court and some of the respondents died during pendency of appeal and their estates however were sufficiently represented plea that appeal had abated and judgment on merits need to be set aside, is untenable."
In
"Jurisdiction of appellate court under O.41 R.4, C.P.C. is open when other persons who were parties to the proceeding before Subordinate court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to appeal or are impleaded as respondents".
9. Here is a case where the husband died and the wife in whose name the document stands is alive. The remedy of perpetual injunction prayed for is a personal action. Apart from this aspect of the matter, the estate, as such, is represented by the wife being at least as one of the legal heirs of the deceased-husband.
10. Hence, in view of the peculiar facts and circumstances, I am not inclined to agree with the submissions made by the learned counsel for the review petitioner on the ground that by virtue of non-bringing on record the legal heirs of the deceased-husband, the resultant effect would be total abatement of the appeal as such.
11. Hence, I do not see any merit in review CMP and accordingly the same shall stand dismissed. No order as to costs.
