Appeal by surviving defendant alone can be proceeded with.

Palaniswamy, J.- The defendants in O. S. No. 9 of 1962 on the file of the District Judge, west Thanjavur, are the appellants. The plaintiff respondent instituted the suit for an injunction restraining the defendants firm reprinting a Tamil drama called “ Kalangarai Deivam” in any form and for recovery of Rs. 14,000 as damages and for certain other reliefs. He claimed to have registered under the Copyrights Act, 1957 (Central Act XIV of 1957) his Tamil novel “Maruthiyin Kathal.” He contended that the first defendant adopting the theme, characterisation, narration and development of the story as found in “Maruthiyin Kathal” wrote under the caption “ Kalangarai Deivam” in the form of a drama, which was published in series in Ananda Vikatan, a weekly Tamil magazine of which the Editor and Publisher was the second defendant. The substance of his complaint was that the defendants committed infringement of his copyright and prayed for the reliefs indicated above. The defendants denied the plaintiff’s claim contending inter alia that there were vital differences in matters of theme, characterisation etc. between the plaintiff’s novel and the first defendant’s drama and that the plaintiff was in no way damnified so as to entitle him to claim damages.

2. The trial Judge accepted the plaintiff’s case holding that his copyright in his novel “ Maruthiyin Kathal” had been infringed by the publication of the first defendant’s drama “Kalangarai Deivam” in the second defendant’s weekly journal Ananda Vikatan. The trial Judge further found that the plaintiff was entitled to damages which he assessed at Rs. 6,250. In the concluding portion of his judgment he held:

“In the result, there will be a decree in favour of the plaintiff as against defendants for Rs. 6,250 (Rupees six thousand and two hundred and fifty only) with interest at 6 per cent, per annum from the date of plaint towards damages and there will be an injunction restraining defendants from reprinting the drama” Kalangarai Deivam “ in any form whatever and proportionate costs of the suit. The other reliefs claimed by the plaintiff are disallowed. But inasmuch as defendants denied the entire case of the plaintiff and their defence has been negatived, there will be no order as to costs in respect of the portion, of the claim of plaintiff which has been disallowed.”

In conformity with the judgment, the decree provided inter alia:

“1. that defendants 1 and 2 be and hereby are restrained by an injunction from reprinting the drama” Kalangarai Deivam “ in any form whatever;

2. that defendants 1 and 2 do pay plaintiff Rs. 6,250 being the damages with interest thereon at 6 per cent, per annum from 23rd August, 1962, the date of plaint, till realisation.”

(The other portions of the decree omitted as not relevant). It is against this decree that this appeal has been preferred by both the defendants. During the pendency of the appeal, the second defendant died on 26th August, 1960. But no steps were taken by his legal representatives to come on record within time, with the result, the appeal abated. To set aside the abatement and to excuse the delay in taking steps to have the abatement set aside and to come on. record, the legal representatives of the second defendant took out C. M. P. Nos. 7161 to 7163 of 1972 which we dismissed by order dated 29th November, 1972. In the result, the abatement of the appeal so far as the second appellant is concerned stands.

3. In view of the said abatement, the Counsel for the respondent plaintiff contended that the entire appeal had abated and that the first defendant was not entitled to prosecute the appeal. This, he raised as a preliminary point by giving notice to the Counsel for the first defendant appellant, and we heard arguments on that point. The questions for consideration is whether the appeal even as regards the first appellant cannot be proceeded with.

4. As seen from the operative portion. of the judgment and the relevant clauses of the decree, the decre

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