Srinivasan, J. - (1.) In these matters when they were called in the morning session at about 01.10 p. m a representation was made on behalf of Mr. R. Subra maniaim counsel for the appellants in Transfer Appeal Suit No. 1005 of 1994 that he was engaged in some other court and he would like the case to be taken at 2.15 p. m. Mr. Renka appearing for the second respondent in the appeal, said that he would argue the review applications filed by him which arc before us as Review Application Nos. 21 and 107 of 1994. He started arguing review applications We heard him in part. We adjourned for the lunch recess and when he assembled at 2.15 p. m. after the recess, Mr. Renka was absent. No representation was made on his behalf Mr. R. Subrarnaniam, counsel for the appellants in Transfer Appeal No. 1005 of 1994 was present in court and we passed over the review applications to take up the transfer appeal for hearing. There are three civil miscellaneous petitions namely 14941 to 14943 of 1994 for setting aside the abatement caused by the death of the sole appellant , in Transfer Appeal No. 1005 of 1994, to bring on record the petitioners as legal representatives of the deceased appellant and to appoint the second respondent as guardian for the minor 9th petitioner. As the three petitions had to be heard in the first instance before the appeal is taken up for hearing we heard learned counsel Mr. Subramaniam on those applications. We asked him whether the application for setting aside the abatement of the appeal could continue as the appeal had already been dismissed as abated on 17.3.1992 by the City Civil Court and that order was not challenggd by the petitioners.
(2.) The relevant facts are as follows. When the appeal was pending in the City Civil Court, Madras as A. S. No. 273 of 1984, the sole appellant died on 18.2.1989. No application was filed in time to bring his legal representatives on record. An application to bring legal representatives on record was filed on 17.8.1989. That application was returned by the office of the City Civil Court for filing applications to set aside the abatement and other reliefs. Those applications were filed on 8.11.1989 and the application for bringing the legal representatives on record was also re-presented on that day along with the other application. There was an application for condonation of delay of 30 days in seeking to set aside the abatement caused by the death of the appellant. That application was numbered as C.M.P. No. 1324 of 1991. On 17.3.1992, the City Civil Court dismissed that application refusing to condone the delay. On the same day, the City Civil Court passed another order dismissing the appeal as abated. In view of the dismissed of C.M.P. No. 1324 of 1991 the order dismissing the C.M.P. No 1324 of 1991 was challenged in a revision petition, before this Court in C.R.P, No. 1036 of 1993. There was no revision or appeal against the order passed in the appeal dismissing the same. By order dated 27.3.1993 this Court allowed the civil revision petition and condoned the delay in seeking to set aside the abatement caused by the death of the applicant in the appeal. The court said. "2 ......The explanation offered by the petitioners in the light of the steps already taken by them in the prior proceedings referred to earlier can be accepted and they have to be afforded an opportunity. The delay on the facts and circumstances of the case and in the light of the stand taken by the petitioners in the affidavit has to be regarded as having been satisfactorily explained and deserves to be condoned. Consequently, the civil revision petition is allowed".
(3.) After the said order was passed in the civil revision petition, the City Civil Court numbered the application for setting aside the abatement as C. M. P. No. 264 of 1993 and ordered notice on 6.12.1993. After notice was served. Mr. M. Renka had entered appearance for the second respondent in the matter and was taking sime for counter. The matter was being adjourned for counter by the second respondent from 17.3.1994 onwards to 23.9.1994. It was thereafter the matter was brought to the notice of this Court by way of writ petition in W. P. No. 14292 of 1994. We had dismissed the writ petition on 15.9.1994 on the ground that the necessary parties were not impleaded in the writ petition.;