The court has the power to implead a person left out originally in an appeal and has the discretion to do justice between the parties.

Balasubramanyan, J.

C.M.P. No. 4069 of 1992 is only an application for amending C.M.P. No. 1318 of 1990 by including the names- of the legal representatives sought to be impleaded in C.M.P. No. 1317 of 1990 in the application C.M.P. No. 1318 of 1990 for condoning the delay as against them. It is stated that due to an inadvertent omission their names were not shown in C.M.P. No. 1318 of 1990. There is no reason not to accept the said submission and therefore C.M.P. No. 4069 of 1992 is only to be allowed. We allow that application.

2. An application for probate was filed by the first respondent in the above appeal under S. 276 of the Indian Succession Act in respect of a will said to have been executed by one Parameswara Menon under which he was appointed the Executor. A caveat was filed by the third defendant in the proceeding and objections were filed by defendants 4 and 5 as well disputing the genuineness and the due execution of the will. The proceedings thus became contentious proceedings within the meaning of Rule 26 of the Rules framed by the High Court of Kerala under the Indian Succession Act. The application was therefore converted into a suit, O.S. 12 of 1983 on the file of the District Court, Ernakulam and tried as such. By judgment dated 30-1-1986 the 1st Additional District Judge, Ernakulam granted probate to the first respondent herein, in terms of the Act. Being aggrieved by the said decision defendants 4 and 5 in the suit filed the above appeal. Defendant No. 4 Appellant No. 1, having died, his legal representatives have been impleaded as Additional Appellants 3 to 8 in the appeal.

3. One E. Parukutty Amma, who was one of the legatees under the will was the first defendant in the suit. When the appeal was filed by defendants 4 and 5 in the suit challenging the decision of the trial court, the first defendant Parukutty Amma was omitted to be impleaded in the appeal. It appears that this fact of omission was discovered only when it was pointed out by counsel for the first respondent-plaintiff when the appeal came up for hearing. For, this is what the first respondent himself has stated in his counter affidavit to C.M.P. No. 1318 of 1990:

"The counsel for the appellants realised the defect in the appeal only when the 1st respondent's counsel pointed out that the appeal was not maintainable on the ground of non-impleadment ofthe 1st defendant. The above appeal first came up for hearing on 26-2-1990. At the time of argument the counsel for the 1st respondent pointed out that the appeal was not maintainable as the 1st defendant was not party in the appeal".

At this stage the appellants made two applications, C.M.P. No. 1317 of 1990 seeking to amend the Memorandum of Appeal by impleading additional respondents 10 to 14 in the appeal and CM.P. No. 1318 of 1990 for condoning the delay in seeking to implead those persons. These applications are opposed by the first respondent the executor and the legal representatives of the deceased first defendant.

4. The suit was decreed on 30-1-1986 and the appeal was filed in time on 15-12-1986. The appeal challenged the entire decree granted by the trial court. When the appeal was filed the first defendant Parukutty Amma who was omitted to be shown, as one of the respondents in the appeal was alive. The appeal was defective for the non-impleading of Parukutty Amnia and the defect obviously was due to an inadvertent omission on the part of counsel for the appellants to include her in the cause title of the Memorandum of Appeal as the appeal could not proceed without her. The question became complicated since the first defendant-the omitted party-died on 29-11-1988 before the defect of her non-impleading was discovered by the appellants. This necessitated not merely the joining of the first defendant as a party to the appeal, but also to bring on record her legal representatives. It is significant and interesting to note that one of her legal representatives is the first respond