M.P. No. 1 of 2015 is filed under order 23 Rule 1A of Civil Procedure Code for transposing the 2nd respondent in C.M.P. No. 2/2012 in S.A.S.R. No. 4004/2012 as the 2nd petitioner/ 2nd appellant and record him as legal representative of the deceased 1st appellant.

2. The brief facts of the case are as follows:

One Manickam @ Chinnappan filed a suit in O.S. No. 224/1999 on the file of the District Munsif Court, Pennagaram, against one Rathna and Munusamy for declaration of his title to the suit property, for permanent injunction restraining the defendants therein from interfering with his peaceful possession and enjoyment and for injunction restraining the 2nd defendant therein from taking any further proceedings based on the decree obtained against the first defendant therein in O.S. No. 70/1987 on the file of the Sub-Court, Krishnagiri. The said Ratna is the daughter of the said Manickam @ Chinnappan and the said Munusamy was the agreement holder who obtained the decree for specific performance against Ratna. The trial Court decreed the suit on 20.12.2000. The 2nd defendant namely Munusamy filed appeal in A.S. No. 60/2001 on the file of Sub-Court, Dharmapuri. The plaintiff namely, Manickam @ Chinappan was shown as the 1st respondent and the said S. Rathna was shown as the 2nd respondent therein. The lower appellate Court, by its judgment and decree dated 19.11.2002, allowed the appeal and thus, dismissed the suit. Aggrieved against the judgment and decree of the lower appellate Court, the plaintiff preferred Second Appeal S.R. No. 4004/2012 before this Court, however with a delay of 3260 days. For condoning such delay, M.P. No. 2 of 2012 was filed and the same was dismissed on 17.08.2012 for non-prosecution. A petition to restore M.P. No. 2 of 2012 was filed in C.M.P. No. 3 of 2012 with the supportive affidavit of the junior counsel. However, in the mean time, the sole appellant died on 25.08.2012. The said Ratna who is the 2nd respondent in the second appeal (Petitioner in the present miscellaneous petition) filed two separate applications one to bring herself on record as the legal heir of the deceased appellant and the other one to transpose her as the appellant in the place of the deceased appellant. After filing these petitions and before its disposal, the restoration petition in C.M.P. No. 3/2012 came up for hearing and the same was dismissed on 18.03.2015 on the reason that it was filed in the name of the dead person, however, by granting liberty to the legal representatives of the deceased appellant to work out their remedies in this Second Appeal. Thereafter, the LR petition in M.P. No. 1 of 2013 was taken up for hearing and though the said petition was ordered on 10.08.2015, by a subsequent order dated 27.10.2015, the learned Judge recalled the said order as the counsel for the petitioner sought permission to withdraw such LR petition since the other application to transpose the 2nd respondent as the appellant has already been filed and the same is pending. Accordingly, the learned Judge dismissed M.P. No. 1/2013 as withdrawn. Thereafter, the present M.P. No. 1/2015 is posted before me for hearing and disposal.

3. This application is opposed by the respondent by filing a counter affidavit.

4. Before answering the question as to whether the petitioner herein is entitled to be transposed as the appellant in the place of the deceased sole appellant, it is better to understand the nature of lis between the parties, in short. The deceased appellant Manickam @ Chinnappan is the father of the present petitioner. The suit property originally belonged to the deceased appellant. The daughter namely the petitioner herein, who claimed to have obtained title to the property by way of a gift from her father under a registered document dated 22.06.1976, entered into an agreement of sale with the respondent herein on 10.02.1987. As she did not execute the sale deed as per the terms of the agreement, the respondent herein filed