In a suit for possession against joint trespassers, where one defendant dies during the pendency of the appeal and his legal representatives are not brought on record within the time prescribed by law, the appeal abates entirely if the right to sue does not survive against the remaining defendants alone and the presence of the defendant on record does not sufficiently represent the estate of the deceased.

I. N. MODI, J.

( 1 ) IN this plaintiffs second appeal in a suit for possession, the only question for determination before me at this stage is whether the plaintiffs appeal in the court below abated entirely and not merely in part, that is against one of the defendant respondents Bherunlal as held by the lower appellate court.

( 2 ) IT is necessary to set out a few facts to appreciate the point in controversy. The plaintiff as sub-mortgagee brought the suit, out of which this appeal arises, against two persons, namely, Bherunlal and his son Mithalal for recovery of possession of certain immovable property on the allegation that they had taken unlawful possession thereof and had refused to return it when demanded. The plaintiff also impleaded the original mortgagees as defendants in this suit and these persons admitted the plaintiffs claim though their names were subsequently ordered to be removed from the array of parties for reasons into which it is not necessary to enter. The other defendants, namely, Bherunlal and Mithalal contested the suit. Their case was that they were rightful owners in possession of the suit property. The trial court dismissed the suit. The plaintiff then went in appeal to the District court, and the appeal eventually came to the Civil Judge for disposal by transfer. While the appeal was pending in the Civil Judges court, defendant Bherunlal died on 283-1952. The plaintiff made an application on 16-12-1952 to bring his (Bherunlals) other sons on the record as the deceaseds legal representatives, but this application was rejected as being barred by time. Consequently, the Civil Judge held that the appeal had abated qua Bherunlal, and thereafter he heard the appeal against mithalal only and dismissed it on the merits. The plaintiff has come up in second appeal to this Court now against the judgment and decree of the Civil Judge.

( 3 ) A preliminary objection has been raised by learned counsel for the defendants that the entire appeal had abated in the lower appellate court and, therefore, this appeal was a nullity. This is how the question of abatement has arisen in this court.

( 4 ) THE argument for the defendants is put in this way. It is contended that the plaintiff brought this suit for recovery of possession from the two defendants on the allegation that they were trespassers and this suit was dismissed by the trial court with the result that the defendants Bherunlal and Mithalal were entitled to remain in possession of the suit property as hitherto. On Bherunlals death on 28-3-1952, when the plaintiffs appeal was pending in the trial court, it is argued, that the right to sue survived not against Mithalal alone but against the other sons of Bherunlal also within the meaning of Order 22, Rule 4 C. P. C. , and, consequently, an application to bring these latter persons on record must have been made under sub-Rule (1) of Order 22 Rule 4 within the time permitted by Article 177 of the Limitation Act, and that having not been so made, the appeal abated against Bherun-lal as held by the lower appellate court itself. It is further contended, however, that that court fell into error when it came to the conclusion that the appeal against Mithalal survived, and that the real position in law was that the whole appeal had abated. The reason which is stated for this conclusion is that any variation or reversal of this decree, if ordered by the court below or for the matter of that by this Court now is bound to cause difficulties. If such a decree is sought to bind the other sons of Bherunlal who had not been brought on the record in the lower appellate court, then it is obviously likely to work to their prejudice. On the other hand, if the contention be that such a decree could bind Mithalal only and not the other sons of Bherunlal, then such a decree would result in inconsistency and also be futile and devoid of all practical effect and no court of law should pass such a decree. It was, therefore,