The dismissal of an appeal against one respondent renders the entire appeal incompetent if the respondent is in a position to seek an execution of the decree and the decision in the appeal would lead to inconsistent situations.

Narayan, J.

1. This is a miscellaneous appeal directed against an order of the Subordinate Judge of Hazaribagh rejecting an application under Sec. 47, Civil P. C. filed by the present appellants in Execution Case No. 32 of 1950 pending before the said Subordinate Judge. The decrea which is sought to be executed in the said Execution Case is a decree for partition and for recovery of certain sums as costs, etc. The present appellants filed an application before the learned Subordinate Judge stating that the decree had become time-barred and that the application for execution was, therefore, not maintainable. This application was rejected by the learned Subordinate Judge, and hence the judgment-debtors-objectors have preferred this appeal.

2. On account of want of service on respondent 15 the appeal stood dismissed against him on 2-1-1953, and the question has, therefore, arisen as to whether the whole appeal has become incompetent. Because of Standing Order No. 1 of 1953 it has to be determined by the Bench immediately after the order of dismissal has been signed as to whether the appeal has become incompetent as a whole or not.

3. On behalf of the appellants it has been contended that they only being the objectors before the Court below and the respondent 15 being not one of the decree-holders-respondents, the dismissal of the appeal against respondent 15 will not make the whole appeal incompetent. Counsel for the appellants placed reliance on certain decisions of this Court as well as on a decision of the Judicial Committee reported in --Mahomedally Tyebally V/s. Safiabai, AIR 1940 PC 215 (A). The Privy Council decision is, in my opinion, not at all a decision in point. The case before their Lordships was a case concerning the administration of an estate, and their Lordships observed that it not uncommonly happens in a suit for administration that for one reason or another a particular interest is not represented before decree, but is either provided for by the decree, or is asserted at a later stage under the decree, or is given effect by a party being permitted to attend certain accounts and inquiries so as to be bound by the result. It was concerning such a suit that their Lordships pointed out that it was open to the Judge in his discretion under Order 1, Rule 10, to add a party against whom the suit had abated for the purpose of giving effect to the rights of the parties. These facts can have no resemblance to the facts of the present case, and the principle laid down by their Lordships cannot be regarded as a principle of universal application. The decision of this Court on which reliance has been placed by the learned Counsel is the one reported in -- Radhamonan V/s. Shreekrishna, AIR 1948 Pat 460 (B), and our attention has been particularly drawn to the following passage in the judgment:

"There is nothing whatever in the terms of B. 4 to suggest that the persons, who did not appeal, must be impleaded as respondents, and were it necessary, one would expect words to that effect in the rule. In Rule 33 there is, as I have already indicated, a direct indication to the contrary effect. Neither rule offends the principle that an order cannot be passed to the prejudice of a person in his absence, because the terms of each rule carefully and expressly limit its application to orders in favour of the absent person so that no question of any objection by him being shut out can arise."

On the basis of this observation it was argued that either under Rule 4 of Order 41 or under Rule 33 Of that Order the appeal should be allowed to proceed against the remaining respondents, inasmuch as the decision made in this appeal cannot be to the prejudice of respondent 15 against whom the appeal has been dismissed. In other words, the learned Counsel has urged that because respondent 15 was also a defendant and a judgment-debtor in the original suit, and because he did not prefer any objection in the execution proceeding it is not at