The main legal point established in the judgment is the court's authority to draw a presumption of death under S.114 of the Evidence Act, allowing the impleadment of legal representatives and the execution of a decree in the absence of the original plaintiff.

1. One Sreedharan, son of Thathanath Kalliani Amma, Pazhanji Village. Talappilly Taluk (hereinafter referred to as the original plaintiff) filed O.S. No. 354 of 1980 in the Munsiff's Court, Chavakkad, for recovery of possession of a building with arrears of rent. By judgment dated 2-2-1982 the suit was decreed in his favour. The defendant who hereinafter referred to as the judgment-debtor, filed A.S. No. 88 of 1982 before the District Court. Trichur challenging that judgment and decree. The notice to the respondent therein, (original plaintiff) seems to have been returned unserved. Subsequently respondent's notice was published in the 'Mathrubhoomi' daily, Seeing the publication the wife, minor children and mother of the original plaintiff filed I.A 338 of 1983 before the appellate court to implead them as additional respondents in the appeal. In the affidavit in support of that application filed by the wife of the original plaintiff it was stated that the original plaintiff was employed in Military. From 15-1-1982 to 29-1-1982 he was on casual leave and came home on leave. On 8-2-1982 he proceeded to Srinagar by K.K. Express from Trichur. Thereafter he was not heard of. By letter dated 2-3-1982 the Military Headquarters informed them that he did not report for duty after leave. They corresponded with the military authorities and also inserted a publication in the Malayalam Express with a photograph of the original plaintiff. Enquiries were also made through police authorities. However, he could not be traced. The said affidavit was filed on 18-2-1983. The court marked the documents produced along with the I. A. and allowed the application observing as follows:

"I make it clear I do not implead them as legal representatives of Sreedharan, I implead them under Order I Rule H and allow the advocate for them to address the court under Order I R.10A and also to act and plead on behalf of the applicants as parties."

Subsequently the appeal was dismissed on 3-7-1984. When the decree was sought to be executed by the wife, minor children and mother of the original plaintiff by filing E.P. No. 109 of 1985, the judgment-debtor filed objections raising the contention that they are not impleaded as legal representatives of the original plaintiff, but were only permitted to conduct the case on his behalf. Therefore it was contended that they have no right to file the execution petition. The execution court rejected that contention.

2. Learned counsel for the judgment-debtor placed considerable reliance on the following observation of this Court reported in Raghava Panicker v. Kesavan (1961 K.L.T. 582):

113 It is on the application of the bolder of the decree or his legal representative that the court gets jurisdiction to execute the decree. There was no such execution petition in this case. The appellant and others who filed B. P. No. 32 stated: "The decree holder has not been in the locality for a long time. There is no member of his tarwad. We are the only children of the decree-holder" (translation). On these allegations they prayed that they may be impleaded as additional decree-holders. They had no case that the original decree-holder was either dead or bad not been heard of for seven years. In fact there is evidence in the case that the decree-holder was alive on the date of the E, P. and this fact is admitted by the appellant. In such circumstances the court had no jurisdiction to allow execution and the orders passed on the E.P. are without jurisdiction."

3. On the other hand, learned counsel for the respondents referred to the following observation of the High Court of Jammu and Kashmir Gulam Nabi Seh v. Gaffer Wagey (AIR 1983 J. & K. 67):

"3 Order 21, R.10 says, "where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree", whereas 0.21 R.11 (2) enables the applicant either to move the application himself or through some other person acquainted with the facts of the case. R.10 and