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 appell