Appeal abates in toto when some of the defendants die during the pendency of appeal and their legal representatives are not brought on record. However, there are exceptions to this rule. If each defendant's act is distinct and separate, the appeal may proceed against the remaining defendants.

N. Y. HANUMANTHAPPA, J.

( 1 ) THIS is a second appeal by Defendants 3 and 4 in O. S. No. 493/74 on the file of the District Munsif, Srikalahasti. The suit was filed for declaration and permanent injunction in respect of Ac. 5-00 of land, more specifically described in the schedule. The Plaintiff s case before the trial court, was that she purchased the land for valuable consideration. By the side of the scheduled property, defendants 1 to 4 also pruchased Ac. 20-00 of land at the rate of ac. 5-00 each. Though they have no right or title in the land purchased by the plaintiff, they were attempting to interfere with the same. Defendants denied the claim of the plaintiff. Evidence let in and the suit was dismissed, against which an appeal in A. S. No. 101/85 was preferred by the plaintiff before the subordinate Judge, Srikalahasthi.

( 2 ) DURING the pendency of appeal, defendants 1 and 2 passed away. No application under Order 22, Rule 4 was filed to bring their Legal representatives on record. Lower appellate court heard the plaintiff and the remaining defendants and passed the judgment, allowing the appeal.

( 3 ) NOW it is contended by Sri. P. S. Narayana, learned counsel for the defendants 3 and 4 that when the appeal was pending before the lower appellate court, Defendants 1 and 2 passed away and their legal representatives were not brought on record and because of failure to bring the legal representatives on record, entire appeal stands abated. To support his contention, he placed reliance on B. S. Singh vs. R. D. Singh, Narayan Bhat vs. Narasimha Sastry and Bibijan vs. Murlidhar.

( 4 ) IN B. S. Singh vs. R. D. Singh, while dealing with Order 22, Rule 4, C. P. C. , the Supreme Court held as follows; where a joint claim against several defendants is made in a suit and during pendency of appeal by the plaintiff some of the defendants die and no separate claim is made against any of the defendants in appeal, the failure of the plaintiff to bring on record their legal representatives results in abatement of appeal in toto.

( 5 ) IN Narayan Bhat vs. Narasiah Sastry (supra) the Karnataka High Court, while dealing with similar provision of law, held that, in a suit filed for prohibitory and mandatory injuction against two defendants, entire suit abates on the death of any of the defendants during the pendency of the suit, when his legal representatives are not broughton record in time.

( 6 ) IN Bibijan vs. Murlidhar (supra), the Supreme Court held that when some of the appellants died during the pendency of an appeal that has arisen out of a suit for redemption of usufructuary mortgage, and no legal representatives were brought on record within time, the entire appeal stands abated.

( 7 ) (WHEREAS) Sri. M. S. R. Subrahmanyam, learned counsel for the plaintiff submitted that no objection was raised when the appeal before the court below was pending, that for failure to make an application under Order 22, Rule 4, c. P. C. the appeal stands abated. As such it is not open now to contend that the order of the lower appellate court is a nullity because of failure to bring the legal representatives of the deceased defendants on record and the entire suit stands abated. According to him, at best it may be stated that appeal against only those defendants whose legal representatives were not brought on record, be held as abated. According to him in cases of acts of trespass, each defendant s act is quite different and separate. Principles laid down in the authorities, which Sri p. S. Narayana relied upon, cannot be made applicable to the facts of the instant case and on the other hand the principles laid down in the following authorities, State of Punjab vs. Nathu Ram, K. H. Talwar vs. Ramappa and Chaya vs. Bapusaheb, are applicable to the facts of the case.

( 8 ) IN State of Punjab vs. Nathu Ram, the Supreme Court, while dealing with order 22, Rule 4, C. P. C. , held as follows : when Order 22, Rule 4, C. P. C. does not provide for the abat

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