Full Judgment
1. This is an application to the Court to declare his appeal abated so far as the 2nd defendant (appellant) is concerned on the ground that he died in July 1908 and that in September his father and brothers were brought on as his legal representatives, whereas his legal representative was his mother who has not been brought on. We are unable to accept this Contention. The application appears to have been made bona fide by the 3rd defendant who was the father of the deceased 2nd defendant after consulting his vakil and was granted by the Court. In these circumstances we think it cannot be said that there was 'no application made to the Court, within the meaning of Section 366, Old Civil Procedure Code or Order 22, Rule 3, Sub-rule (1)of the New Code, so as to cause the suit to abate. This was laid down by this Court in Musal Reddi v. Ramayya I.L.R. (1899) M. 125. In that case some only of the legal representatives had been brought on the record instead of as here the wrong legal representatives, but this, we think, makes no difference. The observations of the learned Judges as to the hardships which would arise from the other construction are fully applicable to the case where a wrong legal representative has been brought on bona fide. This also appears to have been the view taken by this Court in KadirMohideen Marakkayar v. Muthukristna Aiyar I.L.R. 26 M. 230. See also Bcdabai v. Ganesh I.L.R. (1902) B. 162 The petition is dismissed with costs.