Sutyanarayana Raju, C.J.:-
(1) Defendants 1 and 2 are the appellants in this appeal which arises out of the judgment and decree of the court of the subordinate judge, vijayawada, in original suit no. 56 of 1954.
(2) The plaintiff was the sole respondent in the appeal. The respondent died on the 24th of august, 1960. On the 3rd of april, 1962. The appellants filed c. M. P. No. 6441 of 1962 to excuse the delay in seeking to set aside the abatement caused by the death of the respondent. On the 10th of december, 1964, the above petition and the connected petition, c, m. P. No. 6442 of 1962 for setting aside tbc abatement caused by the death of the respondent, came up before a division bench of this court and they made the following order
"both the petition!) are ordered, provided the petitioners pay rs. 100/ - (one hundred) to shri a. L. Narayana rao, the learned counsel for the responde nt, within one month failing which these petitions shall stand dismissed."
(3) On the 22nd of january, 1965, the appellants filed c. M. P. No. 1008 of 1965 to review the above order. The review petition was dismissed by the division bench on the 3rd of march, 1965. The result of the above proceedings is that the appeal stood abated as the legal representatives of the deceased - respondent were not brought on record within the time allowed by law and the appellants' petition to excuse the delay in seeking to set aside the abatemen t stood dismissed by reason of the fact that the condition, subject to which the petition was ordered was not complied with within the time prescribed.
(4) The learned counsel for the appellants has however argued that the legal representatives of the deceased - respondent (plaintiff) were brought on record in the cross - objections filed by the deceased - plaintiff and that there was no need for the appellants to file an application for bringing the legal representatives on recoed as the implealding of tha legal representatives of the deceased - respondent ir the cross - objections would enure for the benefit of the appeal also. He has relied upon a decision of the madras high court i n venhata chariarv. Ponnappa ayyengar in support of his contention. There, a division bench of the madras high court consisting of sir john wallis, c. J. , and krishnan, t. , held that the omission by an appellant to bring on record the legal representative of a deceased - respondent would not cause the abatement of the appeal if the latter, on his own initiative had brought himself on the record in the memorandum of cross - objections filed by the deceased. The learned judges further held that the appeal and memorandum of cross objections were not disconnected and independent proceedings, but were part of the same proceedings. The learned counsell for the appellants also relied upon a decision of the rajasthan high court in hukam chand v. Laxmi narain, where it was held that if an application was presented by the heirs of the deceased respondent in the cross - objections filed by the respondent, advantage of such application could ba taken by the appellant, and the bringing on record of the legal representatives of the repondent in the cross - objections would purport to bring on record the said representatives of the respondent in the appeal also. It was further held that in such case, the omission by an appellanfto bring on record the legal representative of a deceased respondent would not cause the abatement of the appeal because the effect of the legal re. Presentative being added in the crow - objections was in effect, to make him a party to the appeal. The learned judges of the rajasthan high court followed the decision of the madras high court referred to above.
(5) The two decisions relied upon by the appellants' learned counsel support his contention. However, there is a difficulty in the present case. The appellants did in fact file an application for setting aside the abatement caused by the death gof the sole respondent. That application was ordered subject to the condition that the petitioners should pay a sum of rs. 100/ - within the prescribed period. It is admitted that the appellants did not comply with the condition within the period specified. The order of the division bench specifically stated that the petition for excusing the delay in seeking to set aside the abatement would stand dismissed in the event of the condition not being complied with. Therefore, it is clear that the petition for setting aside the abatement stood automatically dismissed since the terms of the order were not fulfilled. The further consequence of the appellants' not complying with the condition was that the appeal itself had abated. It was therefore the appellants filed an application to have the order of the division bench reviewed. That review petition was dismissed. The reasons for the dismissal of the review petition are not now relevant. The effect of the dismissal however, is that the original order of the division bench directing the dismissals, of the petitions field by the appellants to excuse the delay in seeking to set aside the abatement and for setting aside the abatement, became final. There can be no doubt that the appeal itself has abated by reason of the order passed by the division bench.
(6) If the contention of the learned counsel for the appellants should be accepted it would destroy the finality attaching to the order of the division bench. In these circumstances, we are unable to accept the contention of the learned counsel for the appellants that we should hold that the appeal has not abated.
(7) In the result, the appeal is dismissed as having abated. There will be no order as to costs. Appeal dismissed.