Honble KOTHARI, J.–This appeal against the plaintiff- respondent Mukat Behari was already dismissed as having abated on 12.9.2000. Later on, an application for setting aside that abatement was rejected by this Court on 12.4.2002 as the plaintiff-respondent Mukat Behari died on 17.6.99 and the appellant State did not take any steps for bringing on record legal representatives of said deceased plaintiff-respondent Mukat Behari. Therefore, the sole question which may be seen is as to whether the appeal as a whole stands abated against the other co- defendants or not.

(2). Nobody was present on behalf of appellant State. Mr. G.K. Garg, learned counsel appearing for the respondents has invited the attention of this Court towards the various judgments in support of his submission that the nature of decree in the present case in a suit filed for declaration and permanent injunction is of a joint and inserverable nature and, therefore, the whole appeal should be dismissed as having abated. Firstly he relies upon the judgment of Honble Supreme Court in State of Punjab vs. Nathu Ram reported in AIR 1962 SC 89, wherein the Honble Supreme Court observed that when O.22 R. 4 CPC does not provide for the abatement of the appeals against the co- respondents of the deceased respondent, there can be no question of abatement of the appeals against them. The only question is whether the appeal can proceed against them. The provisions of O.1 R. 9 CPC also show that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it. The Honble Supreme Court laid down the test for determination in the following term, ``the Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Courts coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the courts 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 respondent; (b) when the appellant could not have brought the action for the necessary reliefs against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, will be ineffective, that is to say, it could not be successfully executed.

(3). Then in Ram Sarup and ors. vs. Munshi and Ors. reported in AIR 1963 SC 553, in the suit for pre-emption, the Honble Supreme Court held on the death of one of the appellants, that there can be no partial pre-emption because pre-emption is the substitution of the pre-emptor in place of the vendee. The sale in this case was not a sale of any separated item of property in favour of the deceased-appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares. Yet the Court held that as the decree was a joint one and a part of the decree had become final by reason of abatement the entire appeal must be held to be abated.

(4). In Badni (dead) by Lrs. and Ors. vs. Shri Chand (dead) by Lrs and Ors. (1999) 2 SCC 448, the Honble Supreme Court while relying on Nathu Rams case (supra) held that High Court was right in coming to the conclusion that decree was based on a common issue against the appellants in all the six appeals and the failure to bring the legal representatives of one of the deceased appellants in one appeal will result in abatement of other appeals. Otherwise, there will be conflicting decree in the event of other appeals being allowed on merits, which cannot be allowed.

(5). In Shahazada Bi and Ors. vs. Halimabi (2004) 7 SCC 354, the Honble Supreme Court reitera

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