- 1 - HC-KAR NC: 2026:KHC-D:1246 RSA No. 101595 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 30TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO.101595 OF 2022 (DEC/INJ) BETWEEN: SMT. DULHAN W/O. KAMALASAB MULLA, SINCE DECEASED BY HER LR’S. 1. SMT. MUMTAZ W/O. ABDUL SHAIKH AND D/O. DULHAN MULLA, AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O. GULAB COLONY, 100 FT. ROAD, BABA CHOWK, SANGLI, MAHARASHTRA-416416. 2. SMT. MASAI @ MINAJ W/O. BAHADURKHAN PATHAN AND D/O. DULHAN MULLA, AGE 43 YEARS, OCC: HOUSEHOLD WORK, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC-D:1246 RSA No. 101595 of 2022 R/O. NEW VAIBHAV NAGAR, JHATPAT COLONY, BELAGAVI-590010. …APPELLANTS (BY SRI ANAND ASHTEKAR AND SRI SHEKHARGOUDA M. NAGANURI, ADVOCATES) AND: SMT. PYARAN KHADHEER MULLA, AGE: 51 YEARS, OCC: HOUSEHOLD WORK, R/O. KOULAGUDDA, TAL: KAGAWAD, DIST. BELAGAVI-591223. …RESPONDENT (BY SRI SHIVANAND MALASHETTI, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLI RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 01.08.2022 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE, ATHANI, IN R.A.NO.69/2021 AND ALLOW THIS APPEAL WITH COSTS THROUGHOUT BY DECREEING THE SUIT IN O.S.NO.4/2017 ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE, ATHANI AND ETC. THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2026:KHC-D:1246 RSA No. 101595 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This regular second appeal is filed by the legal representatives of the deceased plaintiff challenging the judgment and decree dated 01.08.2022 passed in R.A.No.69/2021 on the file of Principal Senior Civil Judge, Athani1, thereby reversed the judgment and decree dated 01.04.2021 passed in O.S.No.4/2017 on the file of II Additional Civil Judge and JMFC, Athani2. 2. This Court, vide order dated 03.07.2025, while admitting the appeal has framed the following substantial questions of law, which reads as follows: 1. Whether the judgment and decree passed by the First Appellate Court amounts to a nullity since the respondent did not bring on record legal representatives of the deceased original plaintiff in R.A.No.69/2021 resulting in the appeal having abated in its entirety by operation of law? 2. Whether the First Appellate Court is justified in reversing the judgment and decree passed by the 1 Hereinafter referred to as the ‘First Appellate Court’ 2 Hereinafter referred to as the ‘Trial Court’ - 4 - HC-KAR NC: 2026:KHC-D:1246 RSA No. 101595 of 2022 Trial Court and dismissing the suit on the premise of the plaintiff not producing the documents in justification of her claim over the suit property without appreciating the pleadings and material evidence placed on record? 3. The sole grievance of the appellants is that by the time the First Appellate Court rendered the judgment and decree dated 01.08.2022 in R.A.No.69/2021, the plaintiff in the suit, who was respondent in the regular appeal, had already expired on 14.04.2022. Therefore, the judgment and decree passed by the First Appellate Court is against a dead person. 4. In this regard, learned counsel for the appellants has filed a memo along with a copy of the death certificate of the plaintiff, which is in the Marati Language. The death certificate discloses that Smt. Dulhan w/o Kamalasab Mulla, who was the plaintiff in the suit and respondent in the regular appeal, died on 14.04.2022. The said fact was not reported to the First Appellate Court. 5. Therefore, though the order passed by the First Appellate Court cannot be faulted at this stage, the fact remains that the plaintiff in the suit and respondent in the regular appeal - 5 - HC-KAR NC: 2026:KHC-D:1246 RSA No. 101595 of 2022 had died prior to the delivery of the judgment by the First Appellate Court. Consequently, the judgment and decree passed by the First Appellate Court is against a dead person. 6. Therefore, the substantial questions of law relating to the judgment and decree of the First Appellate Court are in nullity. 7. Insofar as the substantial questions of law are concerned, they pertain to the merits of the case. Therefore, the matter requires to be remanded to the First Appellate Court for adjudication on merits after bringing the legal representatives of the deceased plaintiff on record both in the suit as well as in the regular appeal. Therefore, the substantial questions of law framed are not answered, as they pertain to the merits of the case and would be considered after disposal of the appeal by the First Appellate Court. 8. Therefore, the judgment and decree dated 01.08.2022 passed by the First Appellate Court passed in R.A.No.69/2021 on the file of Principal Senior Civil Judge, Athani, is liable to be set - 6 - HC-KAR NC: 2026:KHC-D:1246 RSA No. 101595 of 2022 aside and the appeal is required to be remanded to the said Court for afresh consideration in accordance with law. 9. Hence I proceed to pass the following. ORDER i) The Regular Second Appeal is allowed. ii) The judgment and decree dated 01.08.2022 passed in R.A.No.69/2021 on the file of Principal Senior Civil Judge, Athani, is hereby set aside and the matter is remanded to the First Appellate Court. iii) The First Appellate Court to hear the appeal afresh on merits and pass appropriate orders in accordance with law. iv) Both parties are directed to appear before the First Appellate Court on 16.02.2026 without expecting any further notice from the Court. v) All contentions of both the parties are kept open. - 7 - HC-KAR NC: 2026:KHC-D:1246 RSA No. 101595 of 2022 vi) No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP /CT-AN List No.: 1 Sl No.: 74