Delayed petition filed seeking to set aside abatement.

The fifth respondent in the civil miscellaneous appeal one Gopala Pillai died on 1. 1986 during the pendency of this civil miscellaneous appeal. The appellants have filed these petitions through the first appellant contending that the first respondent got the information of the death of Gopala Pillai only 17. 1993 from their Advocate at Madras on being informed by the advocate for the respondent and therefore, after making enquiry they are filing these petitions. The petition in C.M.P.No.11679 of 1993 is for excusing the delay of 2996 days in seeking to set aside the abatement caused by the death of the fifth respondent. C.M.P.No.11680 of 1993 is a petition to set aside the abatement caused by the death of the fifth respondent. C.M.P.No.11681 of 1993 is a petition to bring the respondents 93 to 98 as legal representatives of the deceased fifth respondent. C.M.P.No.11682 of 1993 is a petition for appointing the 95th respondent as the guardian of the minor respondents. In the common-affidavit of the first appellant, he has stated that one of the legal representatives of the deceased is already on record as the fourth respondent and there is no abatement of the appeal for taking steps to implead the legal representatives within 90 days and by way of abundant caution, he is filing these petitions with a petition to excuse the delay on account of the fact that he was not aware of the death of the fifth respondent earlier.

2. The third respondent filed a counter stating briefly as follows: Gopala Pillai died 10 years ago on 3. 1982. He is a close relation of the appellants. Appellants were present during his funeral. They are also neighbours in premises No.3/28 and 3/31. The reason given by the petitioners for the inordinate delay is not tenable and there is ho bona fides in these petitions and therefore the petitions should be dismissed.

3. The civil miscellaneous appeal is against the order passed by the Sub Judge, Padmanabhapuram in A.S.No.198 of 1970 by which, the learned Subordinate Judge has remanded the suit to the trial court for fresh disposal according to law in the light of the directions given in his judgment.

4. Aggrieved over the order of demand, the 8th defendant in the suit has preferred this civil Miscellaneous appeal since the suit has been dismissed by the trial court at the original instance.

5. Gopala Pillai, deceased fifth respondent in the appeal was the 6th plaintiff in the suit. The fourth respondent in this civil miscellaneous appeal is his wife. The learned counsel appearing for the petitioners would argue that since one of the legal heirs of the deceased respondent is already on record, there is no abatement of the appeal against the said fifth respondent on account of the failure of the appellants to take steps to bring the other legal representatives of the deceased and these petitions were filed only by way of abundant caution. The learned counsel appearing for the respondent would on the other hand argue that the reason given by the petitioners for the delay is not acceptable in view of the relationship between the appellants and the deceased and that after the passing of the Hindu Succession Act, grandchildren of the deceased cannot be the legal representatives and since the wife of the deceased is already on record as the fourth respondent, the petitions, could be dismissed and the civil miscellaneous appeal could be heard with the existing parties since a finality has to be reached in the suit of the year 1967. It has been held in the decision reported in Mahabir Prasad v. Jage Ram, A.I.R. 1971 S.C. 742: (1971)2 S.C.J. 534: 1971 S.C.D. 266 as follows: ‘Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative. Even if there are other heirs and legal representative