2. Effect of abatement of an appeal, as envisaged under Order 22 Rule 9 of the Code of Civil Procedure is involved in this appeal which arises out of a judgment and order dated 26.12.2006 passed by a learned Single Judge of the High Court of Judicature Andhra Pradesh at Hyderabad in Second Appeal No.192 of 1997 dismissing an application of the appellant herein to condone the delay of 2381 days and 2601 days respectively in bring on records, the legal heirs and representatives of two respondents therein being respondents No.2 and 3 holding that the second appeal preferred by them must be dismissed having abated, since cause of action therefor was indivisible.

3. Before adverting to the question involved, we may notice the fact of the matter.

The parties hereto are neighbours. The dispute between them arose in relation to user of a lane. Appellants claim that they were entitled to use the passage in exercise of their right of easement. They purchased some property including the 1/12th right of the vendors in the disputed suit land on or about 6.11.1985. Prior thereto, they were said to have been enjoying an easmentary right thereover.

4. Respondent filed a suit in the Court of Principal District Munsif, Ramachandrapuram on or about 27.12.1985 praying, inter alia, for a decree for grant of mandatory injunction as also a decree for permanent injunction against the appellants restraining them from using the land in dispute. The said suit was dismissed by the learned Trial Judge by a judgment and decree dated 15.6.1993.

5. Respondent preferred an appeal thereagainst. The Subordinate Judge, Ramachandrapuram allowed the said appeal by a judgment and decree dated 22.11.1996 holding that they being the owners of the land in suit, were entitled to a decree for mandatory as also permanent injunction.

6. Appellant approached the High Court in the year 1997 aggrieved by and dissatisfied with the said judgment and decree of the First Appellate Court by preferring a second appeal which was marked as SA No.192 of 1997. Indisputably during the pendency of the said appeal; whereas Respondent No.3 expired on 31.5.1999, Respondent No.2 expired on 14.1.2000. No application for their substitution within the period prescribed under Order XXII Rule 9 of the Code of Civil Procedure was filed. Appellant filed an application for bringing on record the heirs and legal representatives of the said respondent Nos.2 and 3 only in December 2006 alleging that they had been informed thereabout by their counsel only on 19.11.2006. An application for condonation of delay in filing the said application was also filed. The said applications, as noticed hereinbefore, were barred by 2381 days and 2601 days respectively. By reason of the impugned judgment and order, the High Court refused to condone the delay in bringing on records the heirs and legal representatives of respondent Nos.2 and 3. Consequently, as indicated hereinbefore, it was held that the appeal had abated.

7. Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of the appellant, would urge :

(1) The High Court committed a grave error insofar it failed to take into consideration the fact that the appellants were not aware of the consequences of the death of the respondents and they had come to know thereabout only through the counsel at a much later state. In any event, the provision of Order 22 Rule 10A of the Code of Civil Procedure mandating the counsel of the deceased to duly inform the Court in regard to their clients passing away having not been complied with, the impugned judgment cannot be sustained.

(2) A distinction must be borne in mind in regard to application of Order 22 Rule 9 in a civil suit where the parties are required to appear on each and every date of hearing and a Second Appeal and an appeal as the same where the matter is listed after a few years and in that view of the matter, a liberal view in the matter of condonation of delay should be taken.