CHAKRAVARTTI, C. J.

( 1 ) A preliminary objection has been taken in this appeal that, by reason of the death of one of the respondents and the failure of the appellant to bring his representatives on the record, the whole appeal has abated. Much as I regret the result, the objection, in my view, must be given effect to.

( 2 ) THE facts are simple. It appears that there was a reference to arbitration in a partition suit and an award was made to the effect that a sum of Rs. 32,000. /-, of which the appellant had had use and enjoyment, would be paid by him to four persons, each being paid a sum of Rs. 8,000/- and that each of the said four persons would have a charge upon a one-fourth share of that portion of premises No. 115/9, Cornwallis Street which was going to be allotted to the appellant. A decree in terms of that award followed. Thereupon the four persons, to whom I have just referred, adopted a somewhat unusual procedure of combining, in a single application and asking for an order for the sale of the southern Half-portion of the premises charged. It was thus a case of four different persons, holding charges over four different properties, combining in one proceeding and asking the Court for a joint order for the sale of the four properties with a view to the joint dues of all of them being realised. P. B. Mukharji J. passed the order asked for although he appears to have added a condition. The condition was that the appellant was given a year's grace within which he was to pay the amount payable by him to the four persons concerned. After laying down that condition, the-learned Judge directed that if the amount was not paid within a year as directed -- by the amount the learned Judge meant the amount payable to all the four persons -- then the southern half-portion of the premises No. 115/9, Cornwallis Street would be sold by public auction. It appears that the learned Judge refers to southern half-portion of premises No- 115/9, Cornwallis Street as 'the property charged under the decree'. The decree, however, was merely a decree upon the award and the award purported to charge not the southern half of the premises as a single unit, but one-fourth portion of the premises in favour of each one of the four persons.

( 3 ) WHATEVER the want of conformity between the decree passed on the award and the order, the fact remains that, rightly or wrongly, the learned Judge passed a joint order in favour of the four applicants, directed the payment of the- entire amount due to the four and further direct ed that in default of the payment of the said amount, the entirety of the southern half-portion of premises No. 115/9, Cornwallis Street would be brought to sale.

( 4 ) IT is the above order which is challenged in the present appeal. It has been pointed out to us that during the pendency of the appeal, respondent 2, Kherode Chandra Nundy, died and although the fact of his death was duly intimated to the appellant, no steps have been taken to bring his representatives on the record.

( 5 ) IT appears to me that the omission on the part of the appellant to bring on record the representatives of respondent 2 and the consequent abatement of the appeal. as against that respondent have caused abatement of the entire appeal. Mr. Chaudhuri who has appeared on behalf of the appellant contended that the laches of his client, although laches there were, could not have the effect contended for, because Rules 3, 4 and 8 of Order 22, C. P. C. were not applicable to proceedings in execution of a decree or order. In support of that contention, the learned Counsel cited the decision of the Lahore High Court in the case of -- 'mir Khan v. Sharfu', AIR 1923 Lah 560 (A), and the decision of the Patna High Court in the Full Bench case of -- 'hakim Syed Muhammad Toki v. Fateh Bahadur Singh', AIR 1929 Pat 565 (FB) (B ).

( 6 ) SPEAKING of authorities, it appears that the Lahore decision has since been over-ruled by the same High Court in the case of

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