The abatement of an appeal due to the death of one of the appellants precludes the appellate court from entering into the merits of the appeal.

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 decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the ease may be."

But where all the defendants appeal from the whole decree, which decree proceeds on a ground common to all the defendants, is the Appellate Court competent to vary or reverse the decree in favour of all the defendants, when, during the pendency of the appeal, the appeal abates as against one of the defendants? Order 41 rule 4 is in terms applicable only to where appeal is by some only of the plaintiffs or defendants in the suit and not all of them. If all of those plaintiffs or defendants, in regard to whom the decree appealed from proceeds on any common ground, join in filing the appeal Order 41 rule 4 has no application. If in such a suit one of the appellants dies during the pendency of the appeal and the appeal abates for failure to implead the legal representatives in time, then Order 22 rule 9 would operate against such appellant. The abatement of the appeal would operate as a decision in the appeal in favour of the successful party in the court below as against those claiming under the deceased appellant. If, at the instance of the surviving appellants, the decree of the lower court is varied or reversed that would amount to conflicting decisions in the same appeal in regard to the different parties against whom the court, whose decree is appealed against, proceeds on a common ground. That would not be permissible. Hence in such a case, the court will have to hold that abatement as against one party would preclude the decision of the appeal on the merits at the instance of the surviving appellants.

3. The Supreme Court in the decision in State of Punjab v. Nathu Ram A.I.R. 1962 S.C. 89 has laid down the rule thus:

"It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which would be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respon