1. A.S.No.17/78 is an appeal from a decree in a suit. The respondent in the appeal passed away on 12-12-1981 and as his legal representatives were not impleaded in time the appeal abated. The appellant thereafter filed C.M.P.Nos. 6533/82 and 6534/82 for impleading legal representatives and for setting aside abatement, but these were dismissed by a learned single Judge. C.M.A. 185/84 is an appeal against that dismissal, and the question is whether an appeal would lie to a Bench of two judges of this Court, from an order of a single judge refusing to set aside the abatement of a First Appeal. According to counsel, such an appeal would lie either under 0.43 Rule 1(k) of the Code of Civil Procedure read with S.104 thereof, or under S.5(ii) of the Kerala High Court, Act, 1958.

2. S.104(1) of the Code conceives of appeals against certain classes of orders, and one such order, under 0.43 Rule 1(k) is "an order under R.9 of 0.22 refusing to set aside the abatement or dismissal of a suit".

Rule 9 of 0.22 provides for an application to set aside the abatement or dismissal of a suit and the combined effect of these provisions is that an appeal would lie from an order refusing to set