Subramonian Poti, J.

1. Learned counsel for the second respondent raises a preliminary objection and that is about the sustainability of this appeal when one of the appellants is found to have died during the pendency of the appeal and the appeal has abated as against him. The defendants in a suit for declaration of title, having failed in their contention as to absence of title in the plaintiffs and also bar of limitation for the suit, have filed this Second Appeal. During the pendency of the appeal 4th appellant died and his legal representatives have not been impleaded. Whether the appeal could be disposed of on the merits, nevertheless, is the question raised here.

2. It is true that one or more of the defendants could have filed an appeal to this Court against the decree of the court below and the variation or reversal in appeal would have enured to the benefit of the non-appealing defendants also. This is by reason of the provision in Order 41 rule 4 which reads as follows:

"One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all Where there are more plaintiffs or more defendants than one in a suit, and the de