The application for setting aside an abatement under Order XXII R.3 can be made only by the legal representative of the deceased appellant.

1. During the pendency of the appeal before the court below the 2nd appellant, who was the 2nd defendant in the suit, died. The surviving appellants were defendants 1 and 4. The legal representatives of the deceased 2nd appellant did not seek to implead themselves as additional appellants in time, with the result the appeal abated as against the 2nd appellant. Subsequently they moved an application to set aside the abatement as against the 2nd appellant and also sought condonation of the delay in making the application for setting aside the abatement. The court below found that the legal representatives have not shown sufficient cause for setting aside the abatement and therefore dismissed the petition. Since the appeal had been jointly filed by three of the defendants and it abated as against one of them the appellate court took the view that the appeal was no longer maintainable and consequently dismissed the appeal. The order refusing to set aside the abatement is challenged in the Civil Miscellaneous Appeal and the decree of the court below dismissing the suit on the ground that the appeal itself was not maintainable when the appeal abated as against the 2nd appellant is challenged in the second appeal.

2. On the merits I cannot agree with the court below that the legal representatives of the 2nd defendant had not shown sufficient cause to set aside the abatement of the appeal as against the 2nd appellant. In the affidavit accompanying the petition it is averred that at the time of death of the deceased 2nd appellant and thereafter his wife and children were not aware of the pendency of such as appeal, that they were living all along at Nedumangad with the 1st petitioner's father and that soon after they came to know of the pendency of the appeal on 30-11-1968, arrangement was made to file the petition to set aside the abatement. There is no counter-affidavit in the case filed by any of the contestants, so much so the averments in the affidavit remain unrefuted. There is an objection filed. But even in the objection there is no circumstance indicated to warrant the court to assume that the statements in the affidavit are false. The categorical averments in the affidavit of the 1st petitioner that she and her children were living in Nedumangad with her father are not in any way denied in the objection. There is also no circumstance pointed out which would be sufficient for the court to assume that in spite of the categorical statement of the 1st petitioner that she was not aware of the pendency of this appeal she must be taken to have been aware of it. The learned judge, who has dismissed the application of the petitioners seems to think that since 2nd defendant must have been living with his wife and children prior to his death he must have mentioned about the pendency of the appeal to the first petitioner. That is mainly the basis for refusal of the prayer of the petitioners to set aside the abatement. But I think this assumption is quite unwarranted as there is nothing unusual if the deceased had not mentioned such matters to his wife or children. One need not assume that it would always be the case that a person discloses all these matters to his wife and children. Therefore, in the absence of any circumstance which would justify disbelieving the petitioners especially when their case is supported by an affidavit of the first petitioner for which there is no counter-affidavit in answer, I should think that I can accept their case and bold that the delay was because of the ignorance of the pendency of an appeal to which their predecessor-in-interest was a party. If that be the case, there is sufficient cause to excuse the delay in filing the petition for impleading the petitioners as legal representatives and for setting aside the abatement.

3. A rather interesting argument is advanced on behalf of the respondents in the case. It is said that even though the legal representatives of the 2nd defendant were not a