JUDGMENT

MADON, J.:— On May 16, 1983, the Appellant died during the pendency of this Appeal by Special Leave granted by this Court, leaving behind him surviving two grand-sons and two grand-daughters as his only heirs and legal representatives. On November 4, 1985, one grand-son and one grand-daughter filed Civil Miscellaneous Petition No.43065 of 1985 to bring themselves and the other grand-son and grand-daughter on the record of the Appeal in place of the Appellant. As the said application was filed beyond time, they filed another Civil Miscellaneous Petition, namely, Civil Miscellaneous Petition No. 43066 of 1985, to condone the delay and to set aside the abatement of the Appeal. The question which falls to be determined is whether by reason of the very fact of the death of the Appellant the Appeal has abated, because if it has, the question whether the delay in filing the two applications for substitution and for setting aside the abatement of the appeal by reason of the expiry of time should be condoned will not arise.

2. The facts material for deciding the above question may be briefly stated. The Appellant filed a suit in the Court of the Subordinate Judge, Ottappalam, against the Respondent claiming a sum of Rs. 5,500 as damages for defamation. The trial Court dismissed the suit with costs. The Appellant thereupon filed an appeal in the District Court of Palghat. The District Judge allowed the appeal and passed a decree awarding to the Appellant Rs. 500 as damages and proportionate costs both of the said appeal and suit. The Respondent then filed a second appeal against the decree of the District Judge and the Appellant filed his cross-objections thereto. The High Court of Kerala allowed the second appeal, reversed the decree of the Appellate Court and dismissed the Appellants cross-objections as also the suit directing the parties to bear their own costs throughout. It is against this decree and judgment of the Kerala High Court that the present Appeal is directed.

3. Order XXII of the Code of Civil Procedure, 1908 deals with death, marriage and insolvency of parties. As in the suit filed by the Appellant there was only one plaintiff and one defendant, we are not concerned with the provisions of O. XXII other than those relating to a sole plaintiff or a sole defendant. R. 1 of O. XXII of the Code provides that "the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives". Thus, if the right to sue does not survive, the suit will abate on the death of the plaintiff. Under R. 3 of O. XXII, where a sole. plaintiff dies and the right to sue survives, the Court on an application made in that behalf will cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. If, however, no application in that behalf is made within the time prescribed by law, the suit will abate. Under R. 9(2), the Court may set aside the abatement of the suit on the application of the person claiming to be the legal representative of the deceased plaintiff if he proves that he was prevented by any sufficient cause from continuing the suit. Cl. (11) of S. 2 of the Code defines "legal representative" as meaning inter alia "a person who in law represents the estate of a deceased person". R., 11 of O. XXII provides as follows :

" 11. Application of Order to appeals

In the application of this Order to appeals, so far as may be, the word plaintiff shall be held to include an appellant, the word defendant a respondent, and the word suit an appeal."

Thus, reading R. 1 and R. 11 of O. XXII together, in the case of an appeal R. 1 would read "The death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives." Thus, where there is only one appellant and he dies during the pendency of the appeal, if his right to sue does not survive, the appeal will abate and his legal representative will have no right to be brought on the record to continue