REPORTABLE

IN THE SUPREME COURTOF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2240 OF 2009

(Arising out of SLP (C) No.10553 of 2007)

Katari Suryanarayana & Ors.

… Appellants

Versus

Koppisetti Subba Rao & Ors.

… Respondents

J U D G M E N T

S.B. Sinha, J.

1.

Leave granted.

2.

Effect of abatement of an appeal, as envisaged under Order 22 Rule 9

of the Code of Civil Procedure is involved in this appeal which arises out of

a judgment and order dated 26.12.2006 passed by a learned Single Judge of

the High Court of Judicature Andhra Pradesh at Hyderabad in Second

Appeal No.192 of 1997 dismissing an application of the appellant herein to

condone the delay of 2381 days and 2601 days respectively in bring on

records, the legal heirs and representatives of two respondents therein being

respondents No.2 and 3 holding that the second appeal preferred by them

must be dismissed having abated, since cause of action therefor was

indivisible.

3.

Before adverting to the question involved, we may notice the fact of

the matter.

The parties hereto are neighbours. The dispute between them arose in

relation to user of a lane. Appellants claim that they were entitled to use the

passage in exercise of their right of easement. They purchased some

property including the 1/12^th right of the vendors in the disputed suit land on

or about 6.11.1985. Prior thereto, they were said to have been enjoying an

easmentary right thereover.

4.

Respondent filed a suit in the Court of Principal District Munsif,

Ramachandrapuram on or about 27.12.1985 praying, inter alia, for a decree

for grant of mandatory injunction as also a decree for permanent injunction

against the appellants restraining them from using the land in dispute. The

said suit was dismissed by the learned Trial Judge by a judgment and decree

dated 15.6.1993.

2

5.

Respondent preferred an appeal thereagainst. The Subordinate Judge,

Ramachandrapuram allowed the said appeal by a judgment and decree dated

22.11.1996 holding that they being the owners of the land in suit, were

entitled to a decree for mandatory as also permanent injunction.

6.

Appellant approached the High Court in the year 1997 aggrieved by

and dissatisfied with the said judgment and decree of the First Appellate

Court by preferring a second appeal which was marked as SA No.192 of

1997. Indisputably during the pendency of the said appeal; whereas

Respondent No.3 expired on 31.5.1999, Respondent No.2 expired on

14.1.2000. No application for their substitution within the period prescribed

under Order XXII Rule 9 of the Code of Civil Procedure was filed.

Appellant filed an application for bringing on record the heirs and legal

representatives of the said respondent Nos.2 and 3 only in December 2006

alleging that they had been informed thereabout by their counsel only on

19.11.2006. An application for condonation of delay in filing the said

application was also filed. The said applications, as noticed hereinbefore,

were barred by 2381 days and 2601 days respectively. By reason of the

impugned judgment and order, the High Court refused to condone the delay

in bringing on records the heirs and legal representatives of respondent

3

Nos.2 and 3. Consequently, as indicated hereinbefore, it was held that the

appeal had abated.

7.

Mr. G. Ramakrishna Prasad, learned counsel appearing on behalf of

the appellant, would urge :

(1)

The High Court committed a grave error insofar it failed to take into

consideration the fact that the appellants were not aware of the

consequences of the death of the respondents and they had come to

know thereabout only through the counsel at a much later state. In

any event, the provision of Order 22 Rule 10A of the Code of Civil

Procedure mandating the counsel of the deceased to duly inform the

Court in regard to their clients passing away having not been

complied with, the impugned judgment cannot be sustained.

(2)