JUDGMENT - OKA ABHAY S., J.: - On 11th April, 1988 this Court admitted this second appeal by observing that ground (b) in the Memorandum of Appeal raises a substantial question of law. By order dated 8th June, 2004 passed in exercise of power under the proviso to sub-section (5) of section 100 of the Code of Civil Procedure, 1908, this Court framed one more substantial question of law. After framing the said substantial question of law, opportunity was given to the respondent to argue on the said substantial question of law. For that purpose, on 8th June, 2004, the hearing was adjourned and sufficient time was granted. This second appeal was argued extensively on 30th June, 2004 and was kept today for further hearing and judgment.

2.The ground (b) in the Memorandum of Appeal reads thus :

(b) Whether the first Appellate Court has misread and misconstrued the pleadings and has erroneously allowed the appeal ?

The additional substantial question of law framed by me is as under :

"Whether the appeal preferred by the original defendants abated in its entirety as the decree passed by the trial Court is joint and inseparable/indivisible inasmuch as the legal representatives of the original defendant No. 2/appellant No. 2 in the District Court were not brought on record after the death of the said defendant No. 2/appellant No. 2 during the pendency of appeal?"

3.With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it is necessary to briefly refer to the facts of the case. The appellant is the original plaintiff and the respondent is the original defendant No. 1. The suit was filed by the original plaintiff against the respondent and one Keru Tatoba Jadhav (hereinafter referred to as "defendant No. 2") for removal of encroachment. The suit was decreed by the trial Court. An appeal was preferred by the respondent and defendant No. 2. The said appeal has been allowed by the District Court. Hence the original plaintiff has preferred this second appeal.

4.The learned Counsel appearing for the appellant submitted that the original defendant No. 2 who was appellant No. 2 before the First Appeal Court expired during the pendency of the appeal and his legal representatives were not brought on record. He submitted that as the decree passed against the respondent and defendant No. 2 was joint and inseparable, the appeal before the District Court abated in its entirety. He submitted that the finding recorded by the Appellate Court that the entire appeal did not abate is contrary to the law laid down by the Apex Court. He relied upon several judgments a reference to which will be made in the later part of this judgment.

5.The learned Counsel appearing for the respondent relied upon the provisions of Rule 4 of Order XLI of the Code of Civil Procedure, 1908 ("Code" for short). He submitted that the respondent alone was entitled to prefer the appeal for challenging the judgment and decree of the trial Court and even if no appeal was preferred by the original defendant No. 2, the Appellate Court had all the powers to set aside the decree passed against the respondent and the defendant No. 2, though the decree was joint and inseparable. He submitted that Rule 4 of Order XLI of the Code is specifically enacted to meet the contingency which arises in the cases like the present case. He submitted that merely because the legal representatives of the original defendant No. 2 did not take steps for bringing their names on record, the case of the respondent on merits cannot be allowed to be defeated. He submitted that in view of the Rule 4 of Order XLI of the Code, the District Court had power to set aside the decree. He submitted that the effect of not bringing on record the legal representatives for the deceased defendant No. 2 will be at the highest that the appeal will have to be treated as an appeal filed by one of the two defendants against whom decree was passed by the trial Court. He submitted that no interference

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