The 1st defendant must suffer the consequence of his own default to implead all the heirs in the suit, and the decree obtained against some heirs only cannot be binding on the rest.

1. This Second Appeal is by the 1st defendant in a suit to set aside an order dismissing an obstruction petition filed by the plaintiffs 1 and 2 in execution of the decree in O. S. No. 36 of 1947 on the file of Payyoli Munsiff's Court. These plaintiffs 1 and 2 were the sons of one Chacko who was in possession of certain property claimed by the 1st defendant, under the rival title. The first defendant therefore brought the suit O.S. No. 36 of 1947 abovesaid for declaration of his title and the recovery. But as Chacko was dead at date of suit the 1st defendant impleaded Chacko's heirs and obtained the decree after contest. Unfortunately the 1st defendant omitted to implead the plaintiffs 1 and 2 who were admittedly co-heirs along with the defendants in O. S.36. The result was that the plaintiffs 1 and 2 filed this obstruction petition in execution of the decree O.S. 36 and that has led to this suit as above described The Munsiff passed decree upholding the 1st defendant's title while the judge in appeal by the plaintiffs has decreed the suit. Hence this appeal by the 1st defendant.

2. There can be no doubt that the suit was properly allowed by the court below. For the 1st defendant must suffer the consequence of his own default to implead all the heirs of Chacko in his suit O.S. 36. The decree he had obtained against some only of the heirs cannot be binding on the rest however few they may be, however little interest they may for themselves represent. The doctrine of substantial representation of a deceased opponent's estate cannot apply to a suit when it is laid. We are not concerned with any question of execution of a properly obtained decree either where the doctrine has been appealed to with more or less success. Vide A.I.R. 1956 T. C. 147. The result is that the plaintiffs 1 and 2 are entitled to have a declaration of their fraction of title in their capacity as the same of the sons of Chacko. Any how they are entitled to resist the execution of the decree in O. S.36 by way of delivery. The obstruction order was therefore wrong and was properly set aside by the lower court.

3. The other point but of substance was raised as follows:- In granting decree against the 1st defendant the court below has made him liable for the costs of the 2nd defendant, the Madras State, of both the courts below. This portion of the decree is not justifiable. After all the Madras State was only a co-defendant with the 1st defendant and there was no reason why he should pay their costs practically as they supported him.

4. The result is that except to the extent regarding costs of the 2nd defendant as against the 1st defendant the appeal fails and it is dismissed. The 1st defendant will pay the costs of the contesting respondents plaintiffs 1 and 2 in this suit.