Abatement of an appeal due to the death of a party and the failure to substitute his legal representatives renders the decree passed by the appellate court null and void and consequently not executable.

S. BARMAN, J.

( 1 ) IN this matter, the defendant-judgment-debtor No. 1 Harihar Pati is the appellant before us. The relevant facts, shortly stated, leading to the present controversy are these : On February 12, 1940 one Surath Nath Bose, Sisir Kumar bose, Prafulla Kumar Bose, Bijoy Kumar Bose, Birendra Nath Bose, and nalinibehari Bose (hereinafter referred to as plaintiff-Boses) filed a suit in the 2nd munsif's Court Cuttack, being O. S. No. 56 of 1941, against the appellant Harihar pati: and in the said suit, the plaintiffs joined Kunjabehari Bose. Bipinbehari Bose and Bankimbehari Bose (hereinafter referred to as defendant-Boses), as pro forma defendants. The basis of the alleged claim of the plaintiffs was that the defendant No. 1 harihar Pati, the appellant before us, was a trespasser in respect of the suit land, described in the schedule to the plaint in the suit. Incidentally, it is relevant to mention here that the shares of the plaintiff-Boses and the defendant-Boses were specified in the plaint, namely, the plaintiff-Boses jointly having twelve annas share in the suit land and the defendant-Boses the remaining four annas share. The further fact was that there was a mortgage in respect of the land, who was also joined as a defendant in the suit as defendant No. 5. The reliefs, prayed for in the plaint, were - (i) confirmation of possession (ii) alternatively, recovery of possession with either - (a) defendants Nos. 2 to 4 or (b) defendant No. 5 being the mortgagee who jointly would be entitled to the remaining four annas share. This substantially, was the nature of the plaint filed in the suit. On June 7, 1941 the suit was dismissed by the 2nd Additional Munsif, Cuttack,. On appeal to the district Judge, the dismissal of the suit by the 2nd Munsif was upheld by an order made on December 23, 1942. Thereafter, on April 16, 1943 the plaintiffs filed a second Appeal being appeal No. 57 of 1943 from the said decree of dismissal made by the lower Court. In August, 1945, during the pendency of the said appeal no. 57 of 1943, the plaintiff No 1 Surath Nath Bose being the appellant No. 1 in the said Second Appeal died. But no application was made for causing the legal representatives of the deceased appellant to be made parties, as required under Order 22, Rule 3 read with Order 22, Rule 11 of the Code of Civil Procedure, with the consequence that the appeal so far as the deceased appellant No, 1 was concerned abated, nor was any application made for setting aside the abatement. So far as the deceased plaintiff surath was concerned, the matter rested there.

( 2 ) IN due course, on February 27, 1947 the said Second Anneal No. 57 of (943 was heard by Mr. Justice Beevor and it was decreed as follows : "if is ordered and decreed that this appeal be and the same is hereby allowed. The plaintiff-appellant will be given a decree for possession jointly with such of defendants 2 to 5 as are already in possession to the extent of a twelve anna share in the land in question by excluding defendant No. 1 therefrom. "

( 3 ) SUBSEQUENTLY thereafter, it appears that the sons of the said deceased appellant no. 1 Surathnath Bose, along with other plaintiffs, filed an execution case for execution oft e said decree dated February 27, 1947 in Second Appeal No. 57 of 1943 quoted above. The defendant No, 1 Harihar Fati, being the appellant herein, who was the judgment-debtor No. 1 in the execution proceedings filed a miscellaneous Case being No. 297 of 1950 under Section 47 of the Civil Procedure code contending that the said decree dated February 27, 1947 was not executable and that the execution case was not maintainable, as due to non-substitution of the heirs of the said deceased appellant No. 1 Surath Nath Bose in the said Second appeal No. 57 of 1943 in the High Court, the entire appeal abated. On February 16, 1952, the learned Munsif by an order made by him allowed the said Miscellaneous case, holding that the decree in execution was null a