An application under Order 41, Rule 19 of the Code of Civil Procedure for restoration of an appeal can be maintained by only some of the appellants, but the appeal will be restored only in favour of the petitioner appellant.

1. In this revision application the question that has been raised for consideration is as to whether an application under Or. 41, R. 19 of the Code of Civil Procedure for restoration of an appeal can be maintained by only some of the appellants or it is necessary that all of them should either join as petitioners or otherwise must be impleaded as opposite party.

2. The relevant facts are these:-

Title Appeal No. 55 of 1967 was filed by six appellants in the court of the District Judge, Hazaribagh. It was, however, dismissed for default on the 22nd February 1968 due to non-compliance of certain peremptory orders; in regard to filing of notices etc. An application under Order 41, Rule 19 of the Code of Civil Procedure was thereupon filed by only one of them, namely, appellant No. 5. The other appellants were neither impleaded as opposite party to the said application. A question was raised in the court of appeal below that such an application by only one of the appellants was not competent under Rule 19 of Order 41 of the Code of Civil Procedure. The learned District Judge has overruled this objection on the ground that the interest of all appellants was indivisible and, therefore, only one of them could represent the rest of them. He, accordingly, allowed the application and restored the appeal for rehearing.

3. In this Court Mr. Awadh Kishore Prasad appearing on behalf of the petitioners raised the same question that in absence of the other appellants, either as petitioners or in the category of the opposite party, the application under Order 41, Rule 19 of the Code of Civil Procedure was not maintainable.

4. In order to appreciate the contention, it will be necessary to refer to few of the Rules of Order 41. According to Rule 4, in a case where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeded on any ground common to all the plaintiffs or to all the defendants, any one of them, may appeal from the whole decree and the appellate court thereupon may reverse or vary the decree in favour of all the appellants. In the instant case, therefore, if the other appellants were not inclined to prosecute the appeal, appellant No. 5 was not debarred to exercise his right to prosecute the appeal under Order 41, Rule 4, C.P.C. If a plaintiff or a defendant has got a right to file an appeal in the beginning against the whole decree in which there are other plaintiffs or defendants as well, on the same principle, it seems possible to take the view that an application under Rule 19 can be made by only one of the appellants as well and if the court feels satisfied, the appeal of the petitioner appellant can well be restored for further hearing on merits.

Reference may also be made in this regard to Rule 33 of Order 41, under which an appellate court has been authorised to pass any decree and make any order which ought to have been passed or made notwithstanding that the appeal is as to any part of the decree and may be exercised in favour of all or in favour of any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. I, do not, therefore, find that there is any substance in the contention of the learned counsel for the petitioners that the application under Rule 19 of Order 41, C.P.C. was by itself incompetent without impleading the other appellants.

5. Learned counsel next contended that in any view of the matter even if the application under Rule 19 can be held to be maintainable at the instance of only one of the appellants, the appeal should not have been restored in its entirety in favour of all the appellants as done by the learned District Judge. There seems to be some force in this contention. Strictly speaking the stage of the application of Rule 4 is the filing of the appeal itself and once the appeal is filed by a number of persons, the provisions of the Rule become unavailable. Therefore, even though the applicatio