UMESHWAR PANDEY, J. This ap peal under Order XLIII, Rule 1 (k) has been filed against the order dated 97-1986 passed by the Additional District Judge, Ballia whereby the appellant Awadh Behari Singhs petition under Order XXII, Rule 9 C. RC. moved for set ting aside the abatement and to record the substitution of the deceased appel lant was rejected. 2. The brief facts are. that the respondents Kamta Singh and Munni Singh filed a suit against the two brothers Ram Avadh Singh (deceased) and the present appellant Avadh Behari Singh in the trial Court. The suit was decreed vide judgment dated 11-7-1979. Thereafter out of two defendants only Ram Avadh Singh filed an appeal before the District Judge and his brother Awadh Behari Singh was made a respondent in it. While the appeal (CA No. 250/1979) was pending, the appel lant Ram Avadh Singh died on 30-7-1983 leaving the present appellant his brother Awadh Behari Singh as the sole heir. The appellant Awadh Behari Singh moved the Lower Appellate Court vide application dated 23-1-1984 for his sub stitution at the place of his deceased brother. That application was contested and objections were filed from the side of other respondents. The learned Lower Appellate Court after having heard the parties and on placing reliance upon a decision of Division Bench of this Court in case of Thakur v. Mst. Maida Kaur & Ors. , reported in AIR 1954 Aild. 305, found that the appellant-Awadh Behari Singh could not be legal ly transposed as an appellant and ac cordingly his prayer for substitution after setting aside the abatement of ap peal, was refused by the impugned order. 3. The learned Counsel for the appellant-Awadh Behari Singh contends that since one of the defendants, who had not preferred an appeal against the decree passed by the trial Court, was al ready there on record as a respondent in the first appeal, the said appeal could not abate. In support of this contention, reliance has been placed upon the case law of Munney Khan v. Kallo Singh & Ors. , reported in 1986 ACJ 235 and also case law of Mahabir Prasad v. Jage Ham & Ors. , reported in AIR 1971 SC 742 . In support of this contention, reliance has been placed upon the case law of Munney Khan v. Kallo Singh & Ors. , reported in 1986 ACJ 235 and also case law of Mahabir Prasad v. Jage Ham & Ors. , reported in AIR 1971 SC 742 . With the strength of the aforesaid principle of law, the learned Counsel for the appellant has emphasised that in the present case the only thing which was required to be done by the Lower Appellate Court was to transpose Awadh Behari Singh in place of his deceased brother Ram Avadh Singh as an appellant. 4. In the case of Mahabir Prasad (supra), the Apex Court while permitting transposition of a legal representative of the deceased who is already on record in another capacity, has observed as below: "where in a proceeding a party dies and one of the legal representatives is al ready on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal reprerentative Even if there are other heirs and legal representatives and no application for impleading them is made with in the period of limitation prescribed by the Limitation Act the proceeding will not abate. On that ground also the order passed by the High Court cannot be sustened". 5. The Apex Court in observation has thus, propounded that where one of the legal representatives of a deceased is already on record in some other capacity then also the said appeal or other proceeding as the case may be, shall not abate on the death of such party. The question of limitation will not arise in such cases. The learned Single Judge placing reliance upon the aforesaid principle of law laid down by the Apex Court, has also expressed his view in the same manner in para-5 of the judgment in Munney Khans (supra) case, which is reproduced below: "in the instant case, as seen above, there was no dispute that one of the legal rep resentatives of Smt. Jamuna Devi who was also a co-piaintiff in the suit namely Kalloo Singh respondent No. 1 was already on record and as such the appeal could not abate. There is no limitation prescribed for impleading we remaining legal repre sentatives on record and this could be done any time before the disposal of the appeal in order to keep the record straight That, in the instant case was done and the lower appel late Court should accordingly have impleaded Smt. Basanti Devi also in the appeal and disposed it of on merits". 6. In the instant case, the suit for in junction was filed against the appellant-Avadh Behari Singh and his deceased brother and it was decreed. It was only the deceased Ram Avadh Singh who preferred the appeal before the District Judge and Avadh Behari Singh was impleaded as a respondent in it. On the death of Ram Avadh Singh on 30-7-1983, no application for his substitution was filed till 23-1-1984 when only the appellant Avadh Behari Singh moved the Court for setting aside the abatement and for transposing him as appellant in the appeal. That prayer, in any view of the matter could not be legally refused in the face of the Apex Courts decision in the case of Mahabir Prasad (supra) and also because the appeal could not have been eated as abated for want of substitution application, as the sole legal representative of the deceased was already on record. 7. Learned Counsel for the respon dents has contended that the appeal is , otherwise also not maintainable be cause the appeal before the Lower Ap pellate Court had already come to an end by virtue of its abatement for want of substitution of sole appellant. The abatement amounts to dismissal of the appeal and that dismissal being a decree with in the meaning of Section 2 (2) of the C. RC. could have bean ap pealed against by the aggrieved party. No such appeal having been preferred by the present appeilant-Avadh Behari Singh, he was not entitled to file an ap peal under Order XLIII, Rule 1 (k) of the C. RC. In support of his assertion, the learned Counsel has placed reliance upon the case laws of Bhundel v. Smt Gangajali, reported in 1980 ACJ 261 and Radhey sham Shaw & Ors. v. Cor poration of Calcutta, reported in AIR 1973 Calcutta 278. 8. In support of his assertion, the learned Counsel has placed reliance upon the case laws of Bhundel v. Smt Gangajali, reported in 1980 ACJ 261 and Radhey sham Shaw & Ors. v. Cor poration of Calcutta, reported in AIR 1973 Calcutta 278. 8. In the case of Bhundel (supra), the learned Single Judge of this Court while dealing with in a similar matter ac cepted the contention of the respondents that an order of dismissal of the appeal by virtue of its abatement amounted to a decree under Section 2 (2) of the C. RC. against which a regular appeal lies and no appeal, as con templated under Order XLIII, Rule 1 (k), would be maintainable. 9. The view taken by the learned Single Judge of this Court as well as of Calcutta High Court, it so appears that what mattered with the Honble Single Judge to take such a view is that the provision of Order XLlll, Rule 1 (k) provides for an appeal only in the case of dismissal of an application under Order XXII, Rule 9 CP. C. and consequent dismissal of suit for want of sub stitution. The provision of Order XLIll, Rule 1 (k) is reproduced as below: "1. Appeal from orders.-An appeal shall lie from the following orders under the provisions of Section 104, namely: (k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dis missal of a suit. " 10. The words used for availability of an appeal in the aforesaid Rule 1 (k) are though quite specific in respect of a suit, but it is the settled principle of law that an appeal is also continuation of the suit. Thus, for all practical purposes an appeal should be treated as a con tinuity of suit and all the procedures and the formalities which are required to be Dona in a suit are also available in an appeal. In the instant appeal, this appellant Awadh Behari Singh as it is reflected from the aforesaid facts, had not preferred the First Appeal before the District Judge. In the instant appeal, this appellant Awadh Behari Singh as it is reflected from the aforesaid facts, had not preferred the First Appeal before the District Judge. He was arrayed as respondent and if it is deemed that the appeal of his deceased brother was dis missed as abated and a decree was there under Section 2 (2) of the C. P. C. , he could not prefer appeal against it, simply because he was not an appellant in that First Appeal. The appellant-Awadh Behari Singh, being sole surviv ing legal heir of the deceased- appellant of the First Appeal and was there on the record in the capacity as respondent, the appeal had virtually not abated vide the principle of law laid down in case of Mahabir Prasad (supra) by the Supreme Court. Thus, the matter being crystal clear that the present appellant could neither prefer an appeal against the so called decree of abatement/dis missal of the First Appeal nor the First Appeal had actually abated, the only option before him, after death of his brother appellant, was to move the I Ap pellate Court for his transposition at the place of his deceased appellant. He used that option available to him and if such petition moved under Order XXII, Rule 9 of C. P. C. has been dismissed, the only remedy available to Awadh Behari Singh, the present appellant was to come up to this Court under the provision of Order XLIII, Rule 1 (k) of C. RC. Thus, in the present case, the principle of law of the cases of Bhundel (supra) and Radhey sham Shaw (supra) did not come to help the respondents and the contention that an appeal before this Court under Order 43 Rule 1 (k) is not maintainable, does not stand to the legal test. 11. In the aforesaid view of the matter, the appeal succeeds and is here by allowed with costs. The im pugned order of the learned Lower Ap pellate Court dated 9-7-1986 is here by set aside. The case is sent back to the Lower Appellate Court for further proceeding in accordance with law. 11. In the aforesaid view of the matter, the appeal succeeds and is here by allowed with costs. The im pugned order of the learned Lower Ap pellate Court dated 9-7-1986 is here by set aside. The case is sent back to the Lower Appellate Court for further proceeding in accordance with law. Since the appeal is very old, it is here by directed that the District Judge, Ballia will get the hearing expedited as to dis pose it of with in a maximum period of six months from the date of filing a certified copy of the judgment of this Court before him Appeal allowed. .