the facts material for deciding the above question may be briefly stated.
the question which falls to be determined is whether by reason of the very fact of the death of the appellant the appeal has abated because if it has the question whether the delay in filling the two applications for substitution and for setting aside the abatement of the appeal by reason of the expiry of time should be companydoned will number arise.
the appellant filed a suit in the companyrt of the subordinate judge ottappalam against the respondent claiming a sum of rs.
5500 as damages for defamation.
thus if the right to sue does number survive the suit will abate on the death of the plaintiff.
as in the suit filed by the appellant there was only one plaintiff and one defendant we are number companycerned with the provisions of order xxii other than those relating to a sole plaintiff or a sole defendant.
the appellant thereupon filed an appeal in the district companyrt of palghat.
it is against this decree and judgment of the kerala high companyrt that the present appeal is directed.
500 as damages and proportionate companyts both of the said appeal and suit.
from the judgment and order dated 12.2.1971 of the kerala high companyrt in s.a.
civil appellate jurisdiction civil appeal number 91 of 1972.
order xxii of the companye of civil procedure 1908 deals with death marriage and insolvency of parties.
the respondent then filed a second appeal against the decree of the district judge and the appellant filed his cross objections thereto.
in the application of this order to appeals so far as may be the word plaintiff shall be held to include an appellant the word defendant a respondent and the word suit an appeal.
the district judge allowed the appeal and passed a decree awarding to the appellant rs.
rule 1 of order xxii of the companye provides that the death of a plaintiff or defendant shall number cause the suit to abate if the right to sue survives .
rule 11 of order xxii provides as follows application of order to appeals.
as the said application was filed beyond time they filed anumberher civil miscellaneous petition namely civil miscellaneous petition number 43066 of 1985 to companydone the delay and to set aside the abatement of the appeal.
number 21 of 1966.
the trial companyrt dismissed the suit with companyts.
t. kunhitkanan for the respondent.
the judgment of the companyrt was delivered by madon j. on may 16 1983 the appellant died during the pendency of this appeal by special leave granted by this court leaving behind him surviving two grand sons and two grand daughters as his only heirs and legal representatives.
on numberember 4 1985 one grand son and one grand daughter filed civil miscellaneous petition number 43065 of 1985 to bring them selves and the other grand son and grand daughter on the record of the appeal in place of the appellant.
s. nambiar for the appellant.
