Judgment :- 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. 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 years thereafter, i.e., on 27th March, 1981, the second defendant filed application No. 1252 of 1981 praying to excuse the delay of 530 days in filing the petition to set aside the exparte decree passed in C.S. No. 227 of 1973 on 6th February, 1979. 5. Nearly two years thereafter, i.e., on 27th March, 1981, the second defendant filed application No. 1252 of 1981 praying to excuse the delay of 530 days in filing the petition to set aside the exparte decree passed in C.S. No. 227 of 1973 on 6th February, 1979. In the affidavit filed in support of this application, the second defendant after setting out the various contentions of the parties in the suit proper, contended that since the first defendant filed a written statement, she did not, on advice, file any written statement, that the further developments regarding the trial of the suit, etc., were not informed to her by her counsel and that she was completely kept in dark about the stage of the suit until 29th July, 1980 when Mr. Mohammed came to verify and enquire about the details of the matter. The second defendant has also alleged that the first defendant and the plaintiffs have colluded and the first defendant got benefit from the plaintiffs and that she was completely kept in darkness regarding the prosecution of the suit and the hearing of the same. Apart from these allegations, the second defendant contended that she had got a very good case to defend in the main suit. 6. In the counter filed by the first plaintiff, both on his behalf and on behalf of the second plaintiff, it was inter alia contended that there is no acceptable and bona fide explanation for the inordinate delay of 530 days in filing the application for setting aside the ex parte decree, that no sufficient cause has been shown for the delay and that the delay is deliberately made with a view to protract the execution proceedings. It has been further contended that the suit summons were served on the second defendant on 13th, November, 1973, that on 27th November, 1973 she filed the vakalath, that she was represented by a counsel by name Mr. T.A. Raghunathachari, that she did not file any written statement and that she never cared to participate in the suit proceedings. The suit was originally posted in the list in 1978 and it was taken up for trial on 31st, January, 1979. It was only at the stage of execution the second defendant came forward with an application to set aside the exparte decree. The suit was originally posted in the list in 1978 and it was taken up for trial on 31st, January, 1979. It was only at the stage of execution the second defendant came forward with an application to set aside the exparte decree. It is further stated in the counter affidavit that it is strange that the second defendant if she was really interested in prosecuting her case, after engaging a counsel in 1973, should have kept quiet for nearly eight years without making an attempt to ascertain from her counsel as to what had happened to the case. She filed the application to set aside the ex-parte decree on 21st, August, 1980, that too without a petition to excuse the delay in filing such an application. It is only on 29th, March, 1981 the present application to excuse the delay in filing application to set aside the exparte decree was filed. Thus, it is clear according to the plaintiffs, there are absolutely no bona fides in the present application filed by the second defendant, which has been filed just to create complications, to protract the proceedings and to stall the execution of the decree. With the abovesaid averments, the plaintiffs prayed for dismissal of the application. 7. The learned single Judge of this Court after properly appreciating the facts and observing that the second defendant is guilty of laches and that the inordinate delay of 530 days is due to the negligence of the second defendant, dismissed the application. It is as against that order the present appeal has been filed. 8. Pending the appeal, the second defendant who is the appellant in the above appeal, died on 22nd July, 1982. Hence, C.M.P. No. 3339 of 1983 has been filed to implead the petitioners therein as appellants in the appeal in order to continue the proceedings as the legal representatives of the deceased appellant. 8. Pending the appeal, the second defendant who is the appellant in the above appeal, died on 22nd July, 1982. Hence, C.M.P. No. 3339 of 1983 has been filed to implead the petitioners therein as appellants in the appeal in order to continue the proceedings as the legal representatives of the deceased appellant. It has been averred in the affidavit filed by the second petitioner in support of this application that the first petitioner purchased a portion of the suit property from the deceased second defendant on 1st July, 1978, that petitioners 2 to 4 herein purchased portions of the suit property from the second defendant under registered sale deeds dated 10th July, 1975, 10th July, 1975, and 26th November, 1971 respectively, that these petitioners came to know about the death of the second defendant-appellant only during the first week of February, 1983 and that they must be brought on record as the legal representatives of the deceased appellant since they have purchased portions of the suit property from her. According to the petitioners, they are necessary and proper parties to the proceedings and that their presence is necessary to effectively dispose of the appeal and to avoid multiplicity of proceedings. With these averments, the petitioners pleaded for impleading them and transposing them as appellants in the main appeal for the purpose of prosecuting the appeal. 9. Mr. M. Srinivasan, learned counsel appearing for the appellants, contended that the petitioners in C.M.P. No. 3339 of 1983 have to be transposed as appellants in the place of the deceased appellant by virtue of O. 22, R. 10 of the Code of Civil Procedure. The learned Counsel further contended that such an application can be filed at any time without any limitation and that limitation will apply only for petitions filed under O. 22, R. 3 and 4 of the Code of Civil Procedure. As regards the merits of the case, Mr. M. Srinivasan contended that the appellant/second defendant was kept in darkness/by the counsel concerned and that is why she was not able to file the petition to set aside the ex parte decree against her in time. According to him, the reasoning given by the appellant for the delay is sufficient and bona-fide and as such, the learned Judge ought to have condoned the delay in filing the petition to set aside the exparte decree. 10. Mr. According to him, the reasoning given by the appellant for the delay is sufficient and bona-fide and as such, the learned Judge ought to have condoned the delay in filing the petition to set aside the exparte decree. 10. Mr. K. Ramamurthy, learned counsel appearing for the respondent-plaintiffs contended that as per new Article 121 of the Limitation Act (old Article 171) the petitioners ought to have filed the petition to set aside the abatement within sixty days from the date of abatement, that the application filed after six months from the date of demise of appellant Dasseri Gowri Kumari is hopelessly barred by limitation and that the appeal, which has abated cannot be revived by filing an application under Order 22, Rule 10 of Code of Civil Procedure. On the merits of the case, Mr. K. Ramamurthy contended that the reasons given for such an inordinate delay of 530 days in filing the petition to set aside the exparte decree are neither bona fide nor sufficient nor proper on the facts and the circumstances of the present case. Hence, the learned counsel prayed for the dismissal of both C.M.P. No. 3339 of 1983 and the appeal as such. We will refer to the decisions cited by the respective parties to substantiate their contentions in our discussion hereunder. 11. It is clear from the facts of the case that the second defendant was set ex parte and the decree was passed on 6th February, 1979. The petition, out of which the present appeal arises, for condoning the delay was filed 530 days after the passing of the said ex parte decree. The second defendant who filed the application and lost before the learned Single Judge, has preferred the above appeal. She died pending the appeal on 22 nd July, 1982 at Madras. The application (C.M.P. No. 3339 of 1983) under Order 22, Rule 10 of the Code of Civil Procedure was filed as late as 14th February, 1983. Order 22, Rule 10 of the Code of Civil Procedure reads as follows: “10. (1). In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2). Order 22, Rule 10 of the Code of Civil Procedure reads as follows: “10. (1). In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2). The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).” Order 22, Rule 4 of the Code of Civil procedure deals with the procedure in case of death of one of several defendants or of sole defendant. This order will be applicable only for bringing on record the legal representatives of a deceased party. On the other hand. Order 22, Rule 10 of the Code of Civil Procedure Code will not take in such legal representatives. The present petitioners in C.M.P. No. 3339 of 1983, who are the purchasers from the deceased second defendant, will only come under the provisions of Order 22, Rule 10 of the Code of Civil Procedure. 12. According to Mr. K. Ramamurthy, the learned counsel appearing for the respondents, the whole appeal is abated, that abatement is automatic as made clear in the decisions in Ram Gopal v. Har Kishan 1. H.H. Darbar Alabhai Vijsurbhai v. Bhura Bhaya 2 and Union of India v. Ram Charan 3 and that the application under Order 22, Rule 10 of the Code of Civil Procedure is not maintainable, since the appeal itself has abated prior to the filing of such application. No doubt, Mr. M. Srinivasan asserts that there is no such abatement since an application under Order 22, Rule 10 of the Code of Civil Procedure can be filed at any time. Mr. K. Ramamurthy also contended that Order 22, Rules 3 and 4 only will apply to this case and hence the appeal has abated by construing the application filed as one under Order 22, Rules 3 and 4 of the Code of Civil Procedure. In Kedaranath Kanoria v. Khaitan Sons & Co. 4 4 , a Bench of the Calcutta High Court has held that an application under Order 22, Rule 10 of the Code of Civil Procedure is not maintainable after the suit is abated. In Kedaranath Kanoria v. Khaitan Sons & Co. 4 4 , a Bench of the Calcutta High Court has held that an application under Order 22, Rule 10 of the Code of Civil Procedure is not maintainable after the suit is abated. In Goutami Devi Sitamony v. Mahavan Sivarajan 5 , a Full Bench of the Kerala High Court held that Order 22, Rule 10 of the Code of Civil Procedure enables only continuance and that too by leave of Court. There would be no scope for continuance where by reason of the operation of Order 22, Rule 3 or Rule 4, C.P.C., as the case may be, there is abatement and consequently termination of the proceedings. In such a situation, there is no scope for the assignee to make application under Order 22, Rule 10 of the Code of Civil Procedure. 13. In Devkinandan Lal v. Jogendra 6 , the Patna High Court has held that the provisions of Order 22, Rule 10, C.P.C., can apply to the facts of a particular case only where any of the previous Rules is not applicable, that the effect of any other rule prior to Rule 10 of Order 22, cannot be got rid of by a resort to this rule, that where there are two devolutions of interest, namely, one by death of a party covered by the provisions of Rules 3 and 4 of Order 22 and the other by transfer of his interest prior to his death, the transferee has a right to be impleaded under Order 22, Rule 10, C.P.C. and the mere death of the party concerned cannot take away this right and that, however, if once the suit has abated, the assignee cannot continue the suit under Order 22, Rule 10, C.P.C., in as much as there is no suit pending to be continued at the instance of the assignee. 14. Thus, from the abovesaid decisions and on the facts of the case, it is clear that only O. 22, R. 10, C.P.C., can be invoked by the petitioners in C.M.P. No. 3339 of 1983 on whom the interest of the second defendant has devolved to come an record to continue the suit or proceedings. 15. 14. Thus, from the abovesaid decisions and on the facts of the case, it is clear that only O. 22, R. 10, C.P.C., can be invoked by the petitioners in C.M.P. No. 3339 of 1983 on whom the interest of the second defendant has devolved to come an record to continue the suit or proceedings. 15. The next question we have to consider is as to whether the suit has already abated and if that be so, can the petitioners invoke the provisions of O. 22, R. 10, C.P.C., to get themselves impleaded and transposed as appellants. The proposition that the appellants in this case can invoke only O. 22, R. 10 of the Code of Civil Procedure is fortified by the decision of a Bench of this Court in T.K. Chakrapani Iyer Ammalu Ammal 1 wherein P.V. Rajamannar, C.J., speaking for the Bench, after observing that there is no time limit for making an application under O. 22, R. 10, C.P.C., held as follows: “The reason is obvious. The person to or upon whom an interest hat come or devolved during the pendency of a suit or appeal is bound by the decision in the suit or appeal, though eo nomine he is not added as a party, But there is nothing to prevent a suit or appeal being continued without such person being brought on record. It is only when the presence of such person en record becomes necessary owing to special circumstances that the Court may be inclined to permit such person to be brought on record. It may be, the person himself may apprehend that his interest may not be sufficiently safeguarded by the parties on record, or the other side may desire to obviate any trouble or obstruction in execution proceedings. What is really Important is that mere omission to make an application under the rule will not by itself lead to any consequence, will not confer any right on parties or take away any rights from them. In which case we fail to see why a person in whose favour a transfer is made during the pendency of a suit should not choose to come on record at the stage of an appeal or second appeal, If and when he considers that his presence has become necessary. In which case we fail to see why a person in whose favour a transfer is made during the pendency of a suit should not choose to come on record at the stage of an appeal or second appeal, If and when he considers that his presence has become necessary. We are in entire agreement with the reasoning of Abdul Rahman, J., who delivered the Judgment of the Division Bench in Lakshminarain v. Babu 2. As the learned Judge points out, the provisions of O. 22, Rr. 10 and 11 are of an enabling character. There is nothing in them to compel any action at the risk of the loss of any right.” With the abovesaid observations, the Bench allowed the application holding that it is maintainable. 16. In Ghafoor Ahmed Khan v. Bashir Ahmed Khan 3 cited by Mr. M. Srinivasan, the Supreme Court, after observing that in a case of devolution of interest and if it falls under O. 22, R. 10, C.P.C., there will be no question of abatement, held as follows: “After hearing the counsel for the respondents we are not satisfied with the High Courts Order directing that the appeal has abated and is, therefore, dismissed that order cannot be sustained. This is not a case where on the death of the sole respondent his heirs are sought to be brought on record. During the lifetime of the sole respondent there was a transfer of the property (subject matter of appeal) by way of a gift to his wife. In other words it is a case of devolution of interest and the case fails under O. 22, R. 10 of C.P.C., and there will be no question of abatement. We, therefore, direct that the transferee be brought on the record. The appeal is remitted to the High Court and the same be heard and disposed of in accordance with law.” In the case on hand, which is a clear case of devolution of interest while the suit was pending before the trial Court, as per the decision of the Supreme Court referred to above, it is only O. 22, R. 10, C.P.C., that will apply and hence, the petitioners can be brought on record irrespective of the question of abatement as such. However, in Dirghayu Pande v. Kishori Kuer 4 the Patna High Court has held that if a party failed to avail himself of O. 22, R. 10 C.P.C., while the suit was pending, he cannot be allowed to substitute himself under O. 22, R. 10 of the Code of Civil Procedure at the second appellate stage. Likewise, in Saila Bala Dasi v. Nirmala Sundari Dasi 1 the Supreme Court upheld the contention to the effect that in a case where transfer has taken place during the pendency of the suit, the application under O. 22, R. 10, C.P.C., must be filed during the pendency of the suit and not at the appellate stage. Nevertheless the proceedings can be continued at the appellate stage by the transferee though not under O. 22, R. 10, C.P.C., but under S. 146 of the Code of Civil Procedure Code. Thus, in view of the decisions rendered by the Supreme Court in Saila Bala v. Nirmala Sundari 1 and Ghafoor Ahmad Khan v. Bashir Ahmad Khan , 2 which decisions have to be considered as the law of the country, there is no difficulty in allowing C.M.P. No. 3339 of 1983 filed by the petitioners to get themselves impleaded and transposed as appellants in order to continue the proceeding in O.S.A. No. 154 of 1981. 17. We can next consider as to how far, on merits, the appellants can succeed in the appeal. The ex parte decree in the suit was passed as early as 6th February, 1979. The second defendant in the suit, who had not filed written statement, remained ex parte in the suit even though she has engaged a counsel to represent her. It is as late as 9th March, 1981 she came forward with an application (Application No. 1252 of 1981) to condone the delay of 530 days in filing the application to set aside the exparte decree passed on 6th February, 1979. The main reason alleged by the second defendant in the suit was that her counsel has neither informed her about the progress of the suit nor the date of hearing of the suit and that therefore, the second defendant thought that the trial of the suit will be taken up after a long time. Considering the delay of 530 days, the reasons given by the second defendant cannot be countenanced at all. Considering the delay of 530 days, the reasons given by the second defendant cannot be countenanced at all. It is nothing but sheer callousness on the part of the second defendant to keep quiet for such a long time and finally put the blame upon her counsel in order to cover up the laches on her part. The learned Single Judge has correctly adverted to all these aspects and found that the second defendant is guilty of laches, that she has not explained the delay of 530 days properly and that she was negligent in allowing the suit to be decreed exparte. We are in complete agreement with the reasoning of the learned Judge and as such we are not interfering with the order under appeal. 18. For all these reasons, the appeal is dismissed. C.M.P. No. 3339 of 1983 is ordered. However, there will be order as to costs.