An appeal filed in the name of a dead person is a nullity and cannot be continued by the legal representatives.

1. C.M.P.17112 of 1994 is to excuse the delay of 959 days in filing the application to bring the legal representatives of the deceased appellant.

2. C.M.P.17113 of 1994 is to set aside the abatement caused due to the death of the appellant.

3. C.M.P.17114 of 1994 is to bring the legal representatives of the deceased appellant.

4. C.M.P.17115 of 1994 is for stay of the operation of the decree of the lower court.

5. The case of the petitioners is that one Nachimuthu Goundar filed the appeal against the judgment and decree in O.S. No. 237 of 1987 on the file of Sub-Court, Udumalpet in respect of ‘B’ schedule property alone. He died on 9. 91. He had executed a Will dated 4. 90 by which the petitioners are the legal representatives who are entitled for the properties. Hence they are the persons interested in the proceeding.

6. The said suit was filed by the respondents herein for partition and a preliminary decree was passed by the trial court. The respondents filed I.A.1748 of 1990 seeking for passing of final decree. After the death of the said Nachimuthu Gounder, the respondents filed necessary applications in the final decree proceedings to bring the legal representatives on record. The petitioners came to know about the proceedings only on receipt of notice in the L.R petition filed by the respondents in the final decree proceedings. Thereafter the petitioners contacted their counsel and ascertain the stage of the proceedings and on coming to know about the pendency of the appeal, these petitions have been filed. The delay in filing these petitions is bonafide.

7. Though no counter has been filed, the counsel for the respondents took an objection stating that the lower court disposed of the suit on 28. 90 and the appeal had been preferred on 19. 91. The said Nachimuthu Gounder died on 9. 91. Hence the appeal was presented only after the death of the said Nachimuthu Gounder and hence there is no proper presentation of the appeal and the appeal is liable to be rejected.

8. To get over the objection, the petitioners filed C.M.P.No. 2298 of 1996 to amend the prayer in C.M.P. No. 17112 of 1994 as ‘to excuse the delay of 959 days in filing the appeal in proper representation instead of excuse the delay in bringing on L.Rs of the deceased appellant’ and C.M.P. No. 2299 of 1996 to amend the cause title by treating the petitioners as appellants.

9. The counsel for the petitioners contended that the suit was disposed of by the trial court on 28. 90 and the deceased Nachimuthu Gounder instructed his counsel to take necessary steps for filing the appeal. On such instructions, the papers had been sent to the counsel at Madras in the first week of August, 1991. On the basis of the instructions, the counsel at Madras had filed the appeal on 19. 91. In the meanwhile the said Nachimuthu Gounder died on 9. 91. As the petitioners were not aware about the filing of the appeal, they could not instruct their counsel at Madras properly. Hence it is only a bonafide mistake and as such the petition filed for amendment has to be allowed. He also relied upon a judgment reported in Union of India v. K.Abborvam (Deceased), 1995 (II) CTC 329. In that case petitions have been filed for condonation of delay of 851 days in seeking to set aside the abatement caused by the death of the first respondent in the appeal and set aside the abatement and bring the legal representatives of the deceased first respondent on record. The first respondent therein died on 25. 90. Whereas the appeal was presented on 16. 90 against the first respondent as if he was alive. The learned Judges have held as follows:

“In such a case, the procedure to be followed by the appellant has been prescribed by a Full Bench of this Court in Alusumillis Gopala Krishnayya and another v. Alivi Lakshmana Rao, AIR 1925 Madras 1210. The remedy of the appellant is to seek amendment of the cause title of the appeal by showing the names of the legal representatives of the dec