The power of the Appellate Court to reverse or vary a decree in favor of all the Plaintiffs, including a deceased Plaintiff who had not been made a party to the appeal, was a key legal principle established in the judgment.

JUDGMENT

Sen, J. - The point for decision in this Rule arises in this way. The Defendants are the landlords of the Plaintiffs; they had certificate powers and took out a certificate against the Plaintiffs, claiming rent from them at the rate of Rs. 9 per annum. The Plaintiffs contended that the rent was Rs. 5 per annum. They succeeded before the Certificate Officer but on appeal the Collector held that the rent payable was Rs. 9 per annum. The Plaintiffs paid the amount decreed and then instituted this suit for a declaration that the rent payable was Rs. 5 per annum and for the recovery of the excess paid by them. The trial Court decreed the Plaintiffs' suit. On appeal the District Judge reversed the decision of the trial Court and dismissed the Plaintiffs' suit. There was an appeal to this Court which was heard by me. I set aside the decree of the District Judge and remanded the appeal for rehearing to the District Judge with certain observations. While the appeal on remand was pending for hearing before the learned Judge, the Defendants discovered that one of the Plaintiffs had died while the appeal was pending in this Court and that the heirs of that Plaintiff had not been substituted. They then applied to this Court and obtained this Rule on the Plaintiffs to show cause why it should not be held that the appeal in this Court had abated so far as the deceased Plaintiff is concerned and why as a consequence the whole appeal should not be dismissed.

2. The facts are not denied. It is admitted that Nanda Kumar, one of the Plaintiffs, died on the 18th June, 1939, while the appeal was pending in this Court and that his heirs have not yet been substituted. The question which arises is whether this would cause the appeal to abate so far as Nanda Kumar is concerned and whether as a consequence the appeal has abated as a whole.

3. The topic of abatement is dealt with in Or. 22 of the Code of Civil Procedure. The relevant rules under the Order which have to be considered are rr. 3 and 11.

4. They are as follows:

Rule 3--(1) Where one or two or more Plaintiffs die and the right to sue does not survive to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the right to sue survives, the Court, on an application made in that 'behalf, shall cause the legal representatives of the deceased Plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub r. (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the Defendant the Court may award to him the costs which he may have incurred in defending the suit, to be re-covered from the estate of the deceased Plaintiff.

Rule 11. In the application of this Order to appeals, so far as may be, the word "Plaintiff" shall be held to include an Appellant, the word "Defendant" a Respondent, and the word "suit" an appeal.

5. Making the necessary changes in r. 3 it would read thus:

3. (1) Where one or two or more Appellants die and the right to sue does not survive to the surviving Appellant or Appellants alone, or a sole Appellant or sole surviving Appellant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representatives of the deceased Appellant to he made a party and shall proceed with the appeal.

(2) Where within the time limited by law no application is made under sub-r. (1), the appeal shall abate so far as the deceased Appellant is concerned, and, on the application of the respondent the Court may award to him the costs which he may have incurred in defending the appeal, to be recovered from the estate of the deceased Appellant.

6. There can be no question that by-virtue of this Rule the appeal has abated so far as Nanda Kumar is concerned inasmuch as the right to sue does not survive to the surviving Appellants alone.

7. The question which remains is whether the appeal has abated as