S.A.(MD)No.379 of 2007

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 19.04.2021

CORAM:

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

S.A.(MD)No.379 of 2007

Rajamanicka Padayachi

... Appellant/Appellant/Plaintiff

-Vs-

Ramasami Padayachi (Deceased)

1.Kuppusamy Padayachi

2.Kalyani Ammal

3.Achiyammal

4.Thamizharasi

5.Mallika

6.Asaithambi

7.Govindaraju

...Respondents/Respondents 2 to 7 and 9/

Defendants 2 to 7 and 9

PRAYER: Second Appeal is filed under Section 100 of the Civil

Procedure Code, to set aside the Judgment and Decree passed in

A.S.No.124 of 2005, dated 19.04.2006 on the file of the Additional

Sub Judge, Kumbakonam and confirming the Judgment and Decree dated

24.01.2004 in O.S.No.712 of 1993, on the file of the Court of the

Principal District Munsif Court, Kumbakonam by allwing this second

appeal.

For Appellant : Mr.Gomathi Sankar

for Mr.M.V.Krishnan

For R1

: Died

For R2, R3 & R5 : Dismissed

For R6

: Mr.Rajagopalan

for Mr.R.Devaraj

For R4 & R7

: No appearance

JUDGMENT

The plaintiff is the appellant in this second appeal. It is a

suit for recovery of possession. The appellant had lost before both

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S.A.(MD)No.379 of 2007

the courts below. Kuppusamy Padayachi figured as D2 in the suit.

He passed away on 08.02.2012. He left behind as many as five legal

heirs. The counsel for Kuppusamy Padayachi had filed a memo on

29.02.2016 in this regard. In the said memo, the demise of

Kuppusamy Padayachi as well as the details regarding legal

representatives have been set out. The memo was also served on the

counsel for the appellant. But till date, no steps have been taken.

2.The learned counsel for the appellant would state that in

fact, he prepared the necessary affidavit and sent the same to the

appellant. But the appellant because of his old age and other

reasons, is unable to take steps.

3.I am not satisfied with the said explanation. We are now in

April 2021. Information was conveyed to the appellant full five

years and two months ago. There can be no justification in not

taking steps for such a long period. Therefore, the appeal is

dismissed as abated as against R1-Kuppusamy Padayachi.

4.The appeal had been dismissed as against R2, R3 & R5 vide

order dated 21.02.2020. No steps has been taken for setting aside

the said order till date. Therefore, there are only three

respondents left against whom, the appeal can be prosecuted. They

are R4-Thamizharasi, R6-Asaithambi & R7-Govindaraju. It is seen

from a mere look at the cause title that the entire family of

Thyagaraja Padayachi have been impleaded in the proceedings.

Kalyani Ammal is the wife of Thiyagaraja Padayachi. Achiyammal,

Thamizharasi and Mallika are the daughters of Thiyagaraja Padayachi.

Asaithambi is the son of Thiyagaraja Padayachi. When the appeal

had abated as against wife and two daughters of Thiyagaraja

Padayachi, the question of permitting the appellant to proceed

against the remaining daughter and son of Thiyagaraja Padayachi

cannot arise. The decree as far as the legal heirs of Thiyagaraja

Padayachi are concerned is an indivisible decree. Therefore, it is

not possible for this Court to permit the appellant to proceed only

against R4 & R6. Therefore, on the ground of indivisibility of the

decree, since the decree has been final as against the other legal

heirs of Thiyagaraja Padayachi, the appeal stands dismissed as

against R4 and R6 also. That leaves me only with the seventh

respondent-Govindaraju.

5.Though the second appeal is of the year 2007, till date, it

has not been admitted. No substantial question of law has been

framed for determination. The suit was originally filed against as

many as seven defendants. Following the demise of the first

defenda