This is an application,, for setting aside the order; made on September 5th, 1988 dismissing S.A. No. 14 of 1975 for default. 2. Mr. A.Nilamani Singh, The learned counsel for the respondents, has submitted that the appeal had abated as a whole and, therefore, no .appeal survived for restoration. Mr. Binoy Kumar Singh, the learned counsel for, the appellants, has urged that, in a suit for eviction of trespassers, the death of one of the respondents or appellants shall not result in abatement of the appeal in its entirety. To support his contention, he has relied on the decision in Raja Himanshudhar Singh vs. Ram Hikari, AIR 1963 Allahabad 496. 3. Facts-The plaintiff-respondents' case is that one late Chaoba Singh was the owner of the suit land and after his death they inherited the suit land, but the defendant-appellants forcibly dis­possessed them on December 15th, 1971 and constructed 12 RCC pillars, and that the defendant-appellants are joint tort-feasors. The trial Court dismissed the suit. On appeal, the District Judge reversed the dismissal and decreed the suit in favour of the plaintiff, appellants. Being aggrieved by the judgment and decree of the lower appellate Court, the defendant-appellants have appealed to this Court. During the pendency of the appeal, Thambal Marik Devi, one of the respondents and appellant-2 Gulamjat Singh died a few years ago. No legal representatives of them were brought on record. 4. In Raja Himanshudhar ( AIR 1963 All. 496 ), the Allahabad High Court has observed: "The effect of a suit abating against one out of two or more defendants is exactly the same as if he had not been impleaded as a defendant at all. If a suit is instituted against A and B and B dies and the suit abates as against him, the suit will proceed against A as if it had been instituted against him alone. In other words, the suit against A will be governed by provisions of Order 1. Rule 9 of Order J is to the effect that no suit shall be defeated by reason of non-joinder of parties and that the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties, actually before it." 5 With due respect, I am unable to agree with the decision of the Allahabad High Court. I approach the matter as follows. I approach the matter as follows. 'Abatement' means the termination of an action, by the death of a party or change of interest, pendente lite. The effect of abatement is provided under Order 22 Rule 9, C.P.C. Order 22 Rule 9 provides that where a suit abates or is dismissed under Order 22, no fresh suit shall be brought on the same cause of action. However, under sub-rule (2) of Rule 9, abatement can be set aside, as provided thereunder. Therefore, if the suit is proceeded as if a deceased defendant has not been impleaded as a party at all in suit, there is no bar from instituting a suit against his legal representative. In the case of joint tort-feasors a suit cannot fee instituted against some of them leaving out others. For these reasons, I am unable to agree with the decision of the Allahabad High Court. 6. In State of Punjab vs. Nathu Ram, AIR 1967 SC 89, the Supreme Court has held that if one of the respondents is dead and if no legal representative is brought on record, the decree so far lis the deceased respondent and appellant is concerned has become final, and that the Court shall not proceed with, an appeal when the success of appeal would lead to Court's coming to a decision which will be contradictory to decree which had become final in respect of same subject matter, 7. In the present case, the suit was brought against joint tort-feasors and the decree is joint and indivisible. In such situation, applying the principle laid down by the Supreme Court the appeal had abated in its entirety. For these reasons, the appeal is not survived for restoration. Accordingly, the petition is dismissed.