An appeal abates in its entirety if the success of the appeal may lead to a conflict with the decision between the appellant and the deceased respondent, if the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court, or if the decree against the surviving respondents, if the appeal succeeds, be ineffective.

S. K. RAY, J.

( 1 ) THIS second appeal is by defendants 1, 2, 15 and 16 to 20 from the reversing decision of the Subordinate Judge of Balasore decreeing the plaintiffs suit for damages, but reducing the amount of claim from Rs. 700/- to Rs. 200/ -.

( 2 ) THE suit was for recovery of damages amounting to Rs. 700/- for trespass committed by the defendants jointly upon his land described in Sch. Ka of the plaint. Plaintiff set out his case of acquisition of title to the suit-land in the plaint, and alleged that the defendants who had no manner of right, title and interest over the suit-land trespassed in a body and caused damage thereby giving cause of action to the suit.

( 3 ) OF the 20 defendants, defendants 1, 3, 5 to 10 and 14 to 20 contested. They disputed the plaintiffs claim of title to the suit-property and claimed that the said land is communal land belonging to the villagers. Their further defence also was that no such occurrence of trespass by the defendants in a body ever took place in fact.

( 4 ) THE trial court dismissed the suit upon a finding that the plaintiff had neither title, nor possession over the suit-land and that the disputed land was communal land. There was no damage caused in fact.

( 5 ) THE plaintiff appealed. He impleaded all the defendants as respondents in his appeal. During the pendency of the appeal defendant 15 died on 8-10-66. The plaintiff filed a petition dated 7-1-67 expunging his name from record and accordingly the name of defendant 15 was expunged by order dated 16-2-67. Thereafter the lower appellate court passed his decree on 10-1-68 reversing the decision of the trial court and decreeing the suit for damages of Rs. 200/ -. It may be incidentally noted that while reversing the decision of the trial court he rendered no finding regarding the plaintiffs title to and possession over the suit-land or the defence case of denial of the allegation of trespass.

( 6 ) A point has been taken by the appellant that the appeal in the lower appellate court having abated against defendant 15, the consequence was the whole appeal abated. If this point succeeds then the decision of the lower appellate court is bound to be set aside and it would be unnecessary to go into the other points regarding the merits of the case raised by the appellant. I, therefore, passed an order in this appeal recording that this point shall first of all be decided and if this point succeeds the whole appeal will be disposed of on that point. If this point fails, then the matter shall be placed for further hearing on merits.

( 7 ) THE trial court's decree was in the following terms: "the suit is dismissed on contest against defendants 1, 3, 5 to 10 and 14 to 20 with costs and without costs as against the other defendants set ex parte. Pleader's fee at 6 1/2%. Plaintiff do pay to the defendants 1, 3, 5 to 10 and 14 to 20 a sum of Rs. 59. 69 at costs of this suit. " this decree was a joint one. All these defendants in their defence took the common ground that the land in dispute was communal and did not belong to the plaintiff, nor was the plaintiff in possession of the same and this defence found favour with the trial court resulting in the dismissal of the suit as aforesaid. The plaintiff was also liable to pay costs to all the contesting defendants including D-15 under the decree of the trial court.

( 8 ) IN the context of the aforesaid facts the limited question is whether the appeal in lower appellate court abated as a whole. It is not disputed that the appeal abated against the defendant No. 15 in the lower appellate court. It is also not in dispute nor can it be conceivably disputed that the decree of the trial court proceeded on a ground common to all the defendants and it made the plaintiff liable for costs, to all the contesting defendants. The decree was, therefore, a joint and several one. The general rule is that the Court in every suit and appeal will deal with matters in controversy so far as regards the