The court held that the legal representatives of a deceased party can be impleaded as appellants in an appeal under Order 22, Rule 10 of the CPC, even if the appeal has abated due to the death of the party, provided that the application to implead the legal representatives is filed within the limitation period prescribed by Article 121 of the Limitation Act.

1. One Dasari Gowri Kumari, who is the second defendant in O.S. No. 227 of 1973 on the file of this Court, has filed the present appeal. That suit was filed by one Col. P.L.N. Chowdary and minor Satyanarayana for a decree directing the defendants in the suit to vacate and deliver vacant possession of the suit property to the plaintiffs and to pay mesne profits from the date of plaint till date of delivery of possession by the defendants. We do not think it necessary to set out elaborately the facts which led to the filing of the suit C.S. No. 227 of 1973. Suffice it to say that the suit property measures 67 cents situated in Survey No. 136/1B, Kottur, Adyar and in a partition of the year 1960, this property fell to the share of the second plaintiff. The plaintiffs are permanent residents of Guntur, Andhra Pradesh and when they visited the suit property in the year 1972, the first plaintiff saw mushroom structures on the same. On enquiry, he came to know that defendants 3 to 8 had put up structures by virtue of purchases made by them of the respective portions from the second defendant. The second defendant would appear to claim title to the suit property on the strength of a settlement deed executed by her father C.R.K. Naidu. The first defendant also rested his right on the settlement deed alleged to have been executed by his father C.R.K. Naidu. The plaintiffs after issuing a lawyers notice, have come forward with the present suit.

2. The first defendant filed a written statement inter alia contending that the suit property belonged to his father, that his father was raising crops, vegetables and other produce in the suit property and that his father had been in possession and enjoyment of the suit property uninterruptedly ever since 1944. Finally, the first defendant stated that himself and the second defendant have been in possession and enjoyment of the suit property continuously and openly for a number of years and that the plaintiffs suit for possession is not maintainable.

3. The second defendant did not file any written statement. Since defendants 2 to 8 did not make a representation before Court, they were set ex parte on 31st January, 1979 by a learned Judge of this Court.

4. The first defendant alone contested the suit, but, after opening the case, on 31st January, 1979, the plaintiffs and the first defendant have settled their disputes on 6th February 1979. The following endorsement was made by the first plaintiff on the plaint:

“The plaintiffs have paid the first defendant this 6th day of February, 1979 a sum of Rs. 3500/- on his agreeing to submit to a decree for possession being passed by this Honble Court. The plaintiffs do not press for mesno profits and costs against the first defendant.”

The first defendant and his counsel also made the following endorsement on the plaint:

“The first defendant has this day (6th February, 1979) received from plaintiffs the sum of Rs. 3500/- (Rupees three thousand and five hundred only) and agrees for a decree for possession being passed in favour of plaintiffs.”

After such endorsements, the learned Single Judge examined the first plaintiff as P.W. 1. The order of the Assistant Commissioner, Urban Land Tax, South East (South Taluk), Madras-35 was marked as Ex. P-1 and the patta standing in the name of the first plaintiff as Ex. P-2. After examining P.W. 1 and marking Exs. P-1 and P. 2, the learned Judge thought it sufficient to uphold the case of the plaintiffs as against defendants 2 to 8, who have chosen to remain ex parte. In the result, the learned Judge decreed the suit as against defendants 1 to 8 directing them to vacate and deliver vacant possession of the suit property to the plaintiffs, directing defendants 2 to 8 to pay mesne profits from the date of plaint till date of delivery of possession, to be determined by separate proceedings to be taken by the plaintiffs and directing defendants 2 to 8 to pay the costs of the plaintiffs in the suit.

5. Nearly two ye