When an appeal abates, the decree between the appellant and the deceased respondent becomes final and cannot be modified. The provisions of Order XLI Rule 4 and Rule 33 do not apply in such cases.

Judgement

RAGHUBAR DAYAL, J. : The fact leading to this appeal by special leave are these. Nine persons, including Kedar Nath, instituted a suits for ejectment and recovery of rent against two defendants on the allegation that defendant No. 1 was the tenant-in-chief who had sublet the premises to defendant No. 2. The suit for ejectment was decreed against both the defendants and for arrears of rent against defendant No. 1. On appeal by defendant No. 2 the District Judge set aside the decree for ejectment against defendant No. 2 and confirmed the rest of the decree against defendant No. 1. It is against this decree that the nine original plaintiffs filed the second appeal in the High Court on February 29, 1952.

2. Kedar Nath, appellant, No. 3 died on September 8, 1955. In view of Rules 3 and 11 of O. XXII of the Code of Civil Procedure hereinafter called the Code, the appeal abated so far as Kedar Nath was concerned as no application for bringing his legal representatives on the record was made within the prescribed time.

3. On October 1, 1956 two applications were filed in the High Court. one was an application under S. 5 of the Limitation Act for the condonation of the delay in filing the application of substitution of the heirs in place of Kedar Nath. The other was the application for substitution in which it was prayed that Bithal Das and Banarsi Das, the sons of Kedar Nath, deceased, be substituted in place of the deceased appellant as they were his heirs representatives. These two applications were dismissed on May 1,1957, with the result that the appeal stood abated as against Kedar Nath.

4. Bhagwati Prasad, appellant No. 9, also died on July 2, 1956. His widow, Rameshwari Devi, was brought on the record in his place.

5. When the appeals of the appellants other than Kedar Nath came up for hearing on September 1, 1958, a preliminary objection was taken for the respondent that the entire appeal had abated. Mr. Jagdish Swarup, learned counsel appearing for the appellants, contended that the deceased belonged to a joint Hindu family and other members of the family were already on the record and that it was not necessary to bring on record any other person. He further stated that the appeal could not be said to have abated in the particular circumstances. The Court allowed the appellants time for filing an affidavit stating that the deceased was a member of the joint Hind family and other relevant facts.

6. On September 8, 1958 an affidavit was filed by Suraj Prasad Misra pairokar of the appellants. Para 9 of the affidavit stated that Lala Ram Chanda Prasad, appellant No. 8, managed the family properties including the one in dispute which was joint and looked after the affairs of the properties and acted for and on behalf of the family and was already on the record. A counter-affidavit was filed stating that the allegations in para 9 of the affidavit were misleading, that there was no allegation in the affidavit that the family was a joint Hindu family and that the true facts were that the family of the plaintiffs-appellants was not a joint family, that the members were separated, that Lala Ram Chandra Prasad was not karta of the joint Hindu Family, that the plaintiffs were assessed to income-tax separately and that the property in dispute was not joint family property or even joint property.

7. A rejoinder affidavit was then filed by Sri Narain general agent of the appellants stating that the aforesaid statements in the counter-affidavit were misleading and irrevalant and re-affirming that Ram Chandra Prasad managed the house property of the family including the one in dispute and that he looked after the affairs of the house property and acted for and on behalf of the family just as other members of the family looked after other affairs including the business belonging to the family.

8. At the hearing of the appeal of the surviving appellants, the only point which was urged for consideration seems to have been that the surviving ap