The court held that the delay in filing the application to bring the legal representatives on record should be condoned if the party has acted on the bona fide legal advice tendered by his counsel.

K.A. Swamy CJ

These two appeals are preferred against the common order dated 2.07.1991 passed on C.M.P.Nos.3989, 9218 and 9219 of 1990 filed in A.S. No. 108 of 1982.

2. C.M.P. No. 3959 of 1990 was filed for bringing the legal representatives of the deceased 1st Respondent in the appeal on record. C.M.P. No. 9219 of 1990 was filed for condonation of delay. C.M.P. No. 9218 of 1990 was filed for setting aside the abatement. L.P.A. No. 106 of 1992 is filed against that portion of the common order by which the appeal itself has been dismissed consequent to the rejection of C.M.P. No.

3959 9218 and 9249 of 1990.

2. 1. A.S. No. 108 of 1982 is filed by the 1st defendant in the suit, O.S. No. 251 of 1976, on the file of the sub Judge, Salem, against the preliminary decree passed therein for partition and separate possession of the shares. The suit was filed by the 1st respondent in the appeal. The trial Court has awarded 4/9th share to the plaintiff/and 5/9the share to defendants 1 and 2. During the pendency of the appeal, the 1st respondent therein died on 210. 1988. A memo was filed by the learned counsel appearing for the 1st respondent on 111. 1988 intimating the death of the 1st respondent. The memo also contained the names of legal representative.

2. 2. The appellant filed the C.M.P. No. 3959 of 1990 on 27. 1989; whereas C.M.P. No. 9218 and 9219 of 1990 were filed in 7. 1990. The explanation for the delay of 128 days in filing the petition for bringing on record the legal representative of the 1st respondent was that the appellant under the bona fide legal advice believed that as one of the defendants was already on record in the appeal and as the appeal related to the partition suit, there was no question of abatement, therefore the application to bring the legal representative on record, was not filed. Further, it was also explained in the affidavit that in such a situation there could not be any abatement, therefore, the application for setting aside the abatement was also not filed.

3. Learned single Judge, on examining the averments made by the parties in the affidavit and the counter-affidavit has come to the conclusion that the delay has not been properly explained, therefore it cannot be condoned. Consequently, abatement cannot be set aside. Hence the learned single Judge has dismissed the C.M.Ps. and the appeal.

.3. We are of the view that proceedings for bringing on record the legal representatives of a deceased party being a collateral proceeding, the approach of the Court must be to ensure that the substantial rights of the parties are not defeated by reason of the decision in the collateral proceeding. In a case where the party wantonly and with avowed collateral object fails to bring the legal representatives on record, the matter may be considered on a different footing. In the instant case, when the party has acted on the bone fide legal advice tendered by his counsel, it is not possible to hold that the party wantonly or negligently failed to file the application to bring the legal representative of the deceased 1st respondent on record. Ofcourse, in a case where it is shown that the legal advice was not bonafide and it was only a contrivance used to overcome the delay wantonly caused, the Court can reject the same. No such circumstance is brought on record, nor it is so contended. Therefore, we are of the view that in the facts and circumstances of the case and having regard to the fact that these are collateral proceedings, the delay in filing the application to bring the legal representative of the deceased 1st represent on record deserves to be condoned, as otherwise the parties would be put to loss. The procedure provided for adjudication of the rights of the parties should not be usual in such a way so as to defeat the very right of the parties. After all the procedure is hand-made of justice. It should be exercised in such a manner that the ends of justice are advanced and the rights of t