H.R. Krishnan, J.

In this appeal by the Plaintiff-Appellant from the concurrent judgments dismissing his suit, we are at present concerned with a question of procedure. The first appeal itself having abated during hearing as against at least one of the Defendant-Respondents, which is the Court competent to dispose of the belated application for setting aside the abatement made now in this Court during second appeal ? Till this is disposed of, the merits of the second appeal cannot be investigated.

The facts are somewhat unusual. The Plaintiff-Appellant Hiralal son of Rupdeo, sued three persons apparently cousins inter se, namely, Deepa, Bhana and Luna, for declaration of title and restoration of possession of certain lands. The suit being dismissed, Hira went up in first appeal which was numbered 4 of 1955 in the Court of Additional Civil Judge First Class, Dhar (with powers of appeal). While this was pending in that Court, one of the Respondents Luna died. It is now common ground that he died on 28-6-1955 but this was not brought to the notice of the Court which subsequently completed the hearing and delivered judgment on 30-6-1956. Both, in the appellate judgment and appellate decree, Luna is mentioned as a Respondent, neither party having apprised the appellate Court of his death. This second appeal was filed on 1-10-1956 by the Plaintiff now impleading the son and the widow of Luna, as substituted Respondents without, however, either stating that he had died during the hearing itself of the first appeal, or seeking to get the abatement set aside. After the parties appeared, it was alleged and admitted that Luna had died on 28-6-1955. Thereupon, the Plaintiff-Appellant made the prayer by a petition dated 15-9-1959 that the abatement might be set aside and leave granted to substitute the heirs in place of Luna. The Respondents, including the heirs have urged that whatever the merits of the prayer, this matter should be moved before the first appellate Court and till then, the High Court can take no action on this appeal, which is in fact, an appeal from a decree against dead person. On behalf of the Appellant however, it is suggested that at the present stage, the High Court itself may consider this question.

Case-law has been cited by both the parties; but the position is simple and can be disposed of without summarizing the case-law.

On 28-6-1955 itself, the appeal had abated. As it was, the interest of the Respondents was joint and the claim also was not one apportionable as between the defend ant-Respondents. In other words, there was a single inseparable cause of action against all the three Defendants one of whom died and was not appropriately substituted. Thus, on the face of it, the entire appeal had abated on the day of the death of Luna. However, in ignorance of this fact, the parties prosecuted their appeal and the Court itself decided on merits dismissing the appeal on 30-6-1956. After a considerable lapse of time, the Plaintiff-Appellant has asked for the setting aside of the abatement here. As a fact he knew of the death of Luna at least a few days before 1-10-1956 when he impleaded the heirs. But the prayer for setting aside the abatement along with an application under Section 5 of the Limitation Act has been made on 15-9-1959 after the Respondents' affidavit dated 4-8-1959. Thus, before any further steps can be taken, this has to be disposed of. If the abatement is set aside, there may be an occasion to go into the merits of a second appeal. But in the event of the abatement not being set aside, then of course, no occasion arises for any second appeal at all. Obviously the Court in which the suit or appeal has abated is the one competent to consider if the abatement should be set aside. Therefore, the petition for setting aside abatement should be sent along with the record of the trial Court and the first appellate Court, to the latter for disposal according to law. This second appeal is dismissed as be