The abatement of an appeal against some of the appellants will lead to the abatement of the entire appeal if it would result in contradictory decrees in the same litigation with respect to the same subject-matter.

Kanhaiya Singh, J.

1. Kishun Tatwa, respondent No. 6, died during the pendency of this appeal, and his heirs and legal representatives, namely, Musmmat Gungia, his widow and Banwari Tatwa and Jugeshwar Tatwa, his two sons, were substituted in his place. Since, however, the appellants failed to take steps for service of notice on the substituted heirs of the deceased respondent, by virtue of the order of this Court dated 6-9-50, this appeal abated, and was dismissed against the substituted heirs on 20-9-50 nOW the question is whether this abatement against the heirs of one of the respondents involves the abatement of the entire appeal. Mr. Lalnarayan Sinha appearing for the respondents contended that the entire appeal had abated, while Mr. A.K. Sinha representing the appellants contended that the appeal did not abate as a whole but only against the beirs of the deceased respondent.

2. In order to appreciate their argument it will be necessary to state a few facts. In 1934 the Darbhanga Raj, defendant third-party instituted against the plaintiff a rent suit, being Rent Suit No. 1583 of 1934, for recovery of arrears of rent for four years, from 1338 to 1341 Fasli, in respect of a holding of 8 bighas 6 kathas 14 dhurs. The plaintiff was then a minor and was sued through his next friend and guardian Badri Jha. He did not appear and the Court appointed Sri Sobha Kant Misser, Pleader, as guardian-ad-litem. The suit was decreed ex parte on 25-4-35. In due course the Darbhanga Raj levied execution, and in the execution proceeding Badri Jha, and not the guardian-ad-litem Sri Sobha Kant Misser, was appointed as his guardian. The holding was advertised for sale and was eventually purchased at an auction by the Darbhanga Raj on 8-8-36 the sale was confirmed on 12-9-36. The Darbhanga Raj obtained delivery of possession in 1937, The plaintiff applied under Order 21, rule 90, for setting aside this sale on the ground of fraud and suppression of the processes and consequent injury.

This application was registered as Miscellaneous Case No. 514 of 1937 and was dismissed on 7-5-38. The Darbhanga Raj settled the disputed land with defendant no. 1 at an annual rental of Rs. 34/14/- in July, 1938. On 6-9-40 defendant No. 1 sold 6 bighas 5 kathas 10 dhurs of the suit lands to defendants nos. 2 to 4 by a registered instrument. Defendants nos. 2 to 4 transferred some portions of the land purchased by them to defendants nos. 5 to 9 for residential purposes who built structures thereon. The plaintiff attained majority on the 23rd day of Baisakh 1352 Fasli, corresponding to May or June, 1945 and instituted the present suit on 22-2-47 for possession of the disputed land.

He impugned the decree as a nullity on the ground that he was not legally and properly represented and that all the processes were fraudulently suppressed. He also challenged the sale as void because it was based upon a decree which was null and void and was also vitiated by fraud and clandestine service of the processes. The defence was that the decree was a good decree and the sale was legal, that all the processes were properly served, that the plaintiff was properly represented and that he was acquainted with the facts from the very beginning. The trial court found both the decree and the sale vod and illegal and decreed the plain-tiffs suit for possession with costs and mesne profits on contest against the defendants first and third parties and ex parte against the defendant second-party. Defendants nos. 1 to 4 went in appeal to the District Judge, and to appellate court affirmed the decree of the Court of first instance and dismissed the appeal with costs.

3. The defendants who were appellants in the court below, namely, defendants nos, 1 to 4, have preferred this Second Appeal against the judgment and decree of the appellate Court. Defendants nos. 5 to 9 who are transferees of portions of the disputed land from defendants nos. 2 to 4 did not contest the suit at any stage.

4.