In a case where a decree is executable against the heirs of a deceased appellant, including his widow, and allowing the appeal would result in two inconsistent decrees, the appeal will abate due to the failure of the appellants to substitute the heirs of the deceased appellant.

Narayan, J.

1. A question as to the competency of this appeal has arisen on account of the rejection of the petition for substitution in place of the deceased appellant No. 39, Ramanugrah Singh. The contention on behalf of the respondents is that as the heirs of the said Ramanugrah Singh have not been brought on the record, the entire appeal has abated. Besides a son who has been a party to this litigation from the very beginning and who is appellant no. 41 in this appeal, the said Ramanugrah has left a widow who had not been made a party and who has not been substituted in his place after his death. The contention on behalf of the appellants is that the entire appeal has not abated on account of the failure of the appellants to bring on the record the widow of Ramanugrah.

2. In order to appreciate the contentions of the parties it is necessary to state a few facts. The dispute giving rise to this litigation is a dispute relating to irrigation, and the plaintiffs sought a declaration that they were entitled to have an unobstructed flow of water to Ahar no. 800 from certain Karhas and from there through certain plots and through certain cuts and Sotas for irrigation of their fields and that the defendants nos. 1 to 44 (the deceased Ramanugrah being defendant no. 41) were not entitled to put any Genra to stop the flow of the water to cause any obstruction to the flow of the water. They made a prayer that the Bandhs and Genras constructed by the principal defendants be removed and that the defendants be ordered to close the new cuts in Pinds nos. 944 and 788. A permanent injunction was also sought for restraining the defendants from putting any obstruction to the flow of water in future.

3. The suit was decreed by the learned Subordinate Judge, and certain specific directions were given to the principal defendants nos. 1 to 46. The nature of the decree passed by the learned Subordinate Judge will appear from the following extract taken from the operative part of the judgment:

"The principal defendants 1 to 46 are hereby directed to close the cuts of new openings in Pinds nos. 944 and 788. They are also directed to remove the Pinds from the southern corner of plot no. 788 up to the northern limit of Pind No. 931 and again from the southern corner of Find No. 930 up to the northern limit of Find No. 916. Instead of Pinds at these places the defendants, if they so choose, may retain ridges up to the height of two feet and with width up to limit of six links. The principal defendants must close the openings in Pinds Nos. 944 and 788 and remove the Pinds as directed above within 60 days from the date of the decree failing which the plaintiffs shall be entitled to get these done by taking out execution of the decree and the defendants shall be liable for costs. The principal defendants are also permanently restrained from draining out water of their fields by cuts or openings in Pinds Nos. 944 and 788 and they are also permanently restrained from constructing continuous Pind in portions mentioned above."

4. The appeal was filed on 19-12-1949, and the appellant No. 39 in the appeal was the defendant No. 41, Ramanugrah Singh, of the original suit. From the order portion of the judgment which has been quoted above it appears that all the principal defendants were directed to close the cuts and remove the Pinds. They were also directed to close the openings in certain Pinds, and the decree says that if the defendants fail to carry out the directions, the plaintiffs shall be entitled to get all these done by taking out execution. The principal defendants were further permanently restrained from draining out water of their fields by making cuts or openings in certain Pinds and from constructing continuous Pinds at certain places.

The question which arises is whether, according to the nature of the claim and according to the nature of the decree, on account of the failure of the appellants to substitute the heirs of Ramanugrah, the en