Frederick William Gentle, C.J.
1. This is an application by the second respondent in the appeal who was the second defendant in the suit. The first respondent was the plaintiff and the appellant was the first defendant. The suit was decreed in favour of the plaintiff (first respondent in this Court). The second respondent has filed cross-objections in the appeal seeking to obtain relief against the first respondent.
2. The appellant died a few months ago, and this is an application by the second respondent to bring on record the legal representatives of the appellant. The application is made within time and there is no question of the appeal having abated when the application was instituted.
3. It is opposed by the first respondent, the argument being that only the legal representatives of the appellant can make the application, which is not one available at the instance of, in this case, the second respondent. In support of the argument, reference was made to Order 22 Rule 9(2) of the Code of Civil Procedure which limits an application to set aside an abatement to the legal representatives of the deceased plaintiff or others, to whom reference is now not necessary. I can find no similar limitation in respect of an application to bring on record the legal representatives of a deceased plaintiff or a deceased appellant, at the instance of a respondent in an appeal, when there has not been an abatement.
4. If the appeal abates, it is manifest that the cross-objections filed by the second respondent will not be able to be heard, and he will be prevented from challenging the correctness of the decision of the lower Court. This was laid down in S. T. M. R. Murugappa Chettiar v. Ponnuswami Pillai : AIR1921Mad405 a decision of a Bench of this Court.
5. In my view, there is no objection whatever to the present application and it should be allowed. Since the first respondent opposed the application, he should pay the costs.
6. This petition and Civil Miscellaneous Petition No. 5579 of 1946 can be placed before the learned Registrar for further action.
7. I agree.