The appellate court has the authority to consider the delay in filing the application to bring the legal representatives on record and to set aside the abatement, and relevant provisions of the CPC and the Limitation Act apply in such cases.

( 1 ) THIS civil revision petition under s. 115 of CPC is directed against the order dated 31-3-1981 passed by the learned Addl. District Judge, Gulbarga in Mis. A. No. 50 oi' 1980 reversing the order dated 19th November 1979 passed by the learned Munsiff, Aland, in O. S. No. 50 of 1965 rejecting an application filed for setting aside the abatement.

( 2 ) THE aforesaid suit was filed by one Sri Mohammed Sadruddin Ansari against the petitioner and respondents 2 and 6. It was stayed under S. 10 of the CPC, on the ground that another suit between the same parties filed earlier to the present suit was pending in this Court in the form of R. S. A. No. 88 of 1971.

( 3 ) DURING the period when the suit has been stayed, the plaintiff died. An application to bring the legal representatives of the deceased plaintiff has been field on 11-8-1978 long after the death of the plaintiff by the heirs of the deceased plaintiff, who are respondents 1, 3 4 and 5 in this civil revision petition. Along with this application, two other applications have also been filed, one for condoning the delay in filing the application to bring the legal representatives of the deceased on record and another for setting aside the abatement. The trial Court has held that the explanation offered by the applicants is not convincing and it cannot be accepted. Accordingly, it has rejected the application for condonation of dealy; consequently, it has also rejected the applications to bring the legal representatives on record and to set aside he abatement.

( 4 ) AS the order refusing to set aside the abatenent was an appealable order, an appeal under Order 43 of cpc was filed before the Civil Judge, gulbarga but the same was withdrawn by the District Court and was disposed of by the Addl. District Judge, Gulbarga. The learned appellate Judge has accepted the explanation offered by the applicants and has condoned the delay in filing the application to bring the legal representatives on record. Consequently, he has set aside the abatement and has allowed the application to bring the legal representatives of the deceased plaintiff on record.

( 5 ) IN 1his civil revision petition, it was contended by Sri Shivaraj Patil, learned Counsel for the petitioner, as follows: (I) that the application to set aside the abatement was not decided on merits inasmuch as it was rejected because the application for condonation of delay was rejected and as the order passed on the application for condonation of delay was not an appealable order, it was not at all open for the appellate Court to go into the question as to whether it was a case for condoning the delay; (II) that even otherwise, the scope of the appeal was very much limited because the decision on the question of condonation of delay was a matter resting within the judicial discretion of the Court of first instance as, such the appellate Court ought not to have reappreciated the entire material on record as if it were a court of first instance; unless it was of the opinion that the finding recorded by the Court of first instance was vitiated because of the fact that it was either unreasonable or capricious or vitiated for non-consideration of the material produced in the case. In other words, it was contended that the appeals preferred against the orders passed under order 39 Rules 1, 2 and 4 of the Code of civil Procedure would also apply to the appeal preferred against the order refusing to set aside the abatement

( 6 ) IN my opinion, the aforesaid contentions are devoid of merit and cannot at all be accepted All the three applications relate to one matter namely, to bring the legal representatives of the deceased plaintiff on record The other two applications were required to be field because the application to bring the legal representatives of the deceased on record was not made in time. Whatever might be the reason for rejecting the application filed for setting aside the abaternent by (the court of first in