L. Narasimha Reddy, J.

The plaintiffs in O.S.No.546 of 2001 on the file of the XII Additional Chief Judge, City Civil Court (Fast Track Court), Hyderabad filed this appeal, feeling aggrieved by the dismissal of the suit, through judgment, dated 20.09.2009. The suit was filed for the relief of cancellation of sale deeds executed by the 3rd defendant, in favour of defendants 1 and 2. In the appeal, this Court passed an interim order restraining the respondents from alienating the suit schedule property. Respondents 1 and 2, in turn, filed an application with a prayer to vacate the interim order. One of the grounds raised by them was that though the 3rd respondent died on 09.10.2006 itself, the appeal was presented on 23.02.2007 showing as though he was alive.

The appellants filed a set of three applications for setting aside the abatement caused on account of the death of the 3rd respondent-defendant, for condonation of delay in filing the application and for bringing the legal representatives of the 3rd respondent on record. Respondents 1 and 2 on the one hand and the proposed legal representatives on the other filed counter-affidavits.

Sri K.Raghuveer Reddy, learned counsel for the appellants, submits that inclusion of the 3rd respondent in the array of the parties was due to inadvertence and in a way, his clients were not aware of the death of the 3rd respondent though they are brothers. The ignorance is said to be on account of the strained relationship. He further submits that the estate of the deceased 3rd respondent is already represented by respondents 1 and 2, being the transferees of the property and strictly speaking, there is no abatement at all. Alternatively, he submits that this Court can take adequate measures in exercise of powers under Section 153 C.P.C. and Section 21 of the Limitation Act. He has placed reliance upon certain precedents.

Sri Muralinarayan Bung, learned counsel for respondents 1 and 2, on the other hand, submits that the very appeal was incompetent and untenable, since one of the parties died by the time the appeal was instituted. He submits that it is just unbelievable that the appellants, who are the brothers of the 3rd respondent, were not aware of the death of the latter. He contends that the plea of the appellants that the deceased 3rd respondent was living separately from 1979 and that they are not aware of his activities is totally unbelievable. He contends that certain documents were executed or signed by the appellants and the 3rd respondent together long after 1979. He too placed reliance upon certain decided cases.

It is not in dispute that the 3rd respondent died after the trial Court rendered its judgment, but before the appeal was presented. We proceed on the assumption that the appellants were very much aware of the death of the 3rd respondent, by the time the appeal was presented. It needs to be seen as to whether there is abatement of the appeal, and whether the is any incurable defect in the appeal.

The very purpose of bringing the legal representatives on record either in the suit or in the appeal is to ensure that the estate of the deceased party is represented in the proceedings. The death of the 3rd respondent occurred at the intervening stage, namely after the disposal of the suit, but before institution of the appeal. Two options are open to the persons who intend to file the appeal in such cases. The first is to straightaway file an application to bring the legal representatives on record, and the second is to institute the appeal even by showing the dead person as a party and thereafter to file an application under Order 1 Rule 10 C.P.C. The predominant opinion is towards the second.

The suit was filed for declaration to the effect that the sale deed executed by 3rd respondent in favour of respondents 1 and 2 are null and void. Respondents 1 and 2 did not dispute the factum of transfer of the suit property in their favour. As a matter of fact, they have