Judgment

SHAH, C.J.I. :- Jage Ram and two others-hereinafter collectively called the defendants-were lessees of certain property belonging to Mahabir Prasad, his mother Gunwanti Devi and his wife Saroj Devi (collectively referred to hereafter as the Plaintiffs ). The plaintiffs commenced an action in the Court of the Subordinate Judge, First Class, Delhi, for a decree for Rs. 61,750 being the amount of rent due by the defendants . The Subordinate Judge, Delhi decreed the suit. Execution of the decree was resisted by the defendants on the plea inter alia, that the decree was inexecutable because of the provisions of the Delhi Land Reforms Act, 1954. The Subordinate Judge upheld the contention and dismissed the application for execution. Mahabir Prasad alone appealed against that order and impleaded Gunwanti Devi and Saroj Devi as party-respondents. Saroj Devi died in November 1962 and Mahabir Prasad applied that the name of Saroj Devi be struck off from the array of respondents The High Court made an order granting the application "subject to all just exceptions".

3. The High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi were not brought on the record within the period of limitation prescribed by the Limitation Act the appeal abated in its entirety. Against that order, this appeal is preferred with certificate granted by the High Court.

4. The decree in favour of Mahabir Prasad, Gunwanti Devi and Saroj Devi was a joint decree Order 41, Rule 4 Code of Civil Procedure provides:

"Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs. or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be".

Order 41, Rule 4, Code of Civil Procedure invests the appellate Court with power to reverse or vary the decree in favour of all the plaintiffs or defendants even though they had not joined in the appeal if the decree proceed upon a ground common to all the plaintiffs or defendants. In the view of the High Court the power of the Appellate Court under Order 41, R. 4 Code of Civil Procedure may be exercised only in those cases where there is a decree which proceeds upon a ground common to more persons the one and the appeal is filed by one or more of them but not all, and other persons who are interested in the result of the appeal are not made parties to the appeal either as appellants or respondents. Where, such other persons are made parties to the appeal and one of them dies and his heirs are not brought on the record within the period of limitation prescribed by the Limitation Act, the appeal abates in its entirety. The High Court observed:

"......... Appellant Mahabir Prasad has impleaded the remaining two decree-holders as respondents to the appeal. The execution application of all the decree-holders has been dismissed on a common ground that the decree which is sought to be executed has become null and void. The appeal abates so far as decree-holder Sarojni respondent is concerned because her legal representatives have not been brought on the record within time. The order of the executing Court has become final so far as this deceased respondent is concerned. It follows that that order cannot be modified or varied in favour of appellant Mahabir Prasad and the second surviving decree-holder respondent for obviously that may result in inconsistent orders with regard to the same decree. The order of the executing Court in so far as Sarojni deceased respondent is concerned has become final and if the same order is modified or interfered with so far as the other two decree-holders, namely, appellant Mahabir Prasad and respondent Gunwanti Devi are concerned, the apparent result will be two inconsistent orders with regard t