JUDGMENT :- Defendant 2 is the appellant in this Court and this appeal arises out of a suit for specific performance of contract. The plaintiffs case was that Uttar Manikpur Hitakari Bank, which is represented in these proceedings through its Secretary, had agreed to sell certain lands to the plaintiff under certain conditions. That offer was accepted bat the Bank did not accept the amount and the property was sold by the Bank to defendant 1. Hence the suit for specific performance.

2. Defendant 1, the subsequent transferee from the Bank, filed a written statement denying all allegations of collusion with the Bank or its officers and further pleaded that he was a bona fide purchaser for value without notice of the alleged previous contract wish the plaintiff. Defendant 2 filed a separate written statement alleging that the plaintiff did not fulfil her part of the contract, time was of the essence of the contract, and denying all the other allegations made about collusion and other statements. The learned Munsif decreed the suit in part directing defendant 2 to execute and register a kobala in favour of the plaintiff in respect of the property in suit within a particular date and in default, the kobala was to be executed by the Court at the costs of defendant 2. An appeal was taken against this decision by defendants 1 and 2 before the Court of the District Judge. A cross objection was filed by the plaintiff with a prayer that defendant 1 should also be directed to execute and register the kobala jointly with defendant 2.

3. Two points were raised before the learned District Judge. The first with regard to the fact whether there was any contract of a sale as asserted by the plaintiff and if so, whether the plaintiff had fulfilled her part of the contract entitling her to specific performance of the said contract. The second point taken up for consideration by the Court was whether the trial Court erred in not directing the execution of the kobala by defendant 1 jointly with defendant 2. The first point was found against the appellant and the appeal was dismissed. With regard to the second point, the Court allowed the cross-objection directing both defendants 1 and 2 to execute the kobala.

4. A second appeal has been filed by defendant 2, the Secretary of the Uttar Manikpur Hitakari Bank making the plaintiff as also defendant 1 respondents to the appeal. During the pendency of this appeal in this Court, defendant 1 died and no steps were taken within 90 days by the appellant for bringing the heirs on the record. Subsequently, the appellant obtained a Rule from this Court (CR 1202 (s) of 1947) to show cause why the abatement should not be set aside and the heirs of defendant 1 brought on the record. This Rule came up for hearing on 19th February and was discharged. An application for setting aside the abatement and for substituting the heirs of the deceased respondent 2, was rejected. The further contention on behalf of the petitioner appellant that the heirs of the deceased respondent might be added as party respondents to the appeal was also disallowed.

5. On behalf of the respondents a preliminary objection had been taken to the competency of the present appeal. It is contended that the appeal having abated, so far as defendant 1 is concerned, the present appeal is not properly constituted and ought to be dismissed.

6. On behalf of the appellant Mr. Ghose contends that under O. 41, R. 4, Civil P.C., it is competent for this Court at this stage to hear the appeal and to give relief even to the dead defendant against the heirs of respondent 2, against whom the appeal has already abated.

Rule 4 will be attracted only if the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants. As indicated already, defences as put forward by the two defendants were not identical. Defendant 1 had rested his case particularly, if not wholly, on the plea that he was a bona fide purchaser for value without noti

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