IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.85 OF 2017 BETWEEN Sri. Govindappa, (died on 18/02/2012) Since dead by his LRs, 1. Smt. Puttathyamma, W/o. Late Govindappa, Aged about 55 years, 2. Srinivas, S/o. Late Govindappa, Aged about 34 years, Both are R/o. Sunkadakatte, C/o. No.224/A, Vastirahithara, Society Part-2, Shanthidam College, Hanumantharayan Palya, Viseewanedam Post, Bengaluru North, Bengaluru-91 (By Sri. D.C.Parameswaraiah, Advocate) AND Srigandada Kaval Vasathirahithara Sangha A Registered Sangha Under the Mysore, Socities Registration Act, 1960 (Mysore Act No.17 of 1960) Having its office At No.17, Nanjundeswara Nilaya, 1st Floor, …Appellants 50th Main Road, Muniswara T Block, Girinagar, Bengaluru-85, Represented by its Secretary K.C.Marigowda, S/o. Chikkamallegowda, Aged about 65 years, …Respondent (By Sri. S.Nagaraja, Advocate) This RFA is filed under Section 96 of CPC against the judgment and decree dated 24.11.2016 passed in O.S.No.1020/2016 on the file of the XXXI Additional City Civil and Sessions Judge, Bengaluru City, decreeing the suit for declaration and injunction.
This RFA coming on for further orders, this day, the Court made the following :
ORDER Respondent’s counsel has filed a memo stating that the respondent came to know that Govindappa defendant in the suit was dead on the day when the suit was filed. The respondent did not have knowledge about death of Govindappa. Service on Govindappa was effected by way of paper publication and therefore this appeal may be allowed granting liberty to the respondent to file fresh suit against the legal representatives of Govindappa.
2. The learned counsel for the respondent is present now and submits that respondent may be granted liberty to file a fresh suit. The learned counsel for the appellant submits that question of granting liberty does not arise as there is no bar for filing another suit against concerned persons.
3. Since it is submitted that the defendant Govindappa was dead by the time the suit was filed, the decree obtained against him by the plaintiff is nullity in the eye of law. For these reasons the judgment and decree of the trial court does not survive. Question of granting liberty may not arise because the plaintiff is always at liberty to file a fresh suit. With these observations appeal is allowed and judgment and decree of the trial court is set aside. Pending applications do not survive.
Sd/- JUDGE sd