Legal Representatives Of Appellant In Second Appeal Are Entitled To Re-Submit Appeal Which Was Returned For Curing Defects: Kerala High Court

The Kerala High Court has declared that an applicant can resubmit an appeal instituted by a person under whom the applicants claim. The Court clarified that legal representatives of an appellant in a Regular Second Appeal are entitled to re-submit the appeal which was returned for curing the defects. 

Justice K. Babu held: “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 a person under whom the applicants claim.”

The Original appellant filed a Regular Second Appeal before the High Court. The Appeal was returned by the Registry due to certain defects on 31.07.2007.

It was stated that the Appellant should have cured the defects within 15 days, but the original appellant died before re-presenting the appeal. On 20.08.2017, the legal representatives of the appellant filed an application seeking to implead in the appeal. An application to condone the delay in the re-presentation of the Appeal was also filed.

The respondents argued that the legal representatives could not continue with this appeal. It was stated that the original Appeal was returned and the original appellant died before the re-presentation of the Appeal. The only remedy available for the legal representative was to institute a fresh appeal.

The Court sought the assistance of Senior Counsel Shri P. B. Krishnan. He submitted that there is no express provision in the Rules of the High Court of Kerala dealing with the re-presentation of an appeal by the legal representatives. The provisions of the Civil Code of Procedure would be applicable to all matters unless the law prohibits it.

The Court held that the appeal would be deemed to already 'instituted' though it was returned for curing the defects.

The Court referred to Smt. Saila Bala Dassi v Smt. Nirmala Sundara Dassi where it was held that S. 146 of Code of Civil Procedure is a beneficent provision and it should be construed liberally. Section 146 enables legal representatives to make applications wherever the person under whom they claim is entitled to make an application. Thus, the Court declared that Section 146 enables the applicants to carry on with the proceedings already instituted.

Case Title: Appu (Died) and Others v Ajayan and Others

Case Number: Unnumbered R.S.A. (Filing No: 1276 of 2012)

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