An appeal abates as a whole if one of the respondents, who is a necessary party, dies and the appeal is allowed to abate as against him/her.

N. K. DAS, J.

( 1 ) CHALLENGE has been made to grant of Letters of Administration by the subordinate Judge, Puri on the strength of an unregistered will dated 20-8-72. Plaintiffs applied for grant of Letters of Administration on the strength of a Will said to have been executed by their mother. Defendant No. 2 has filed this appeal challenging the decision of the Subordinate Judge. Originally, only the plaintiffs were made respondents, but subsequently leave has been granted by this Court on 24-8-77 to amend the memo of appeal. By way of amendment, original defendants Nos. 1, 3 and 4 have been added as respondents Nos. 3, 4 and 5. As the appellant did not take steps for service on respondent No. 5, the appeal stands dismissed and the stay was vacated as against respondent No. 5 by order dated 21-12-79.

( 2 ) THE case of the plaintiffs is that they were looking after the affairs of their mother and she had much affection for them. While in sound state of body and mind, she executed a Will on 20-8-72 out of her free will in respect of a house situated in Puri town and it was her last Will.

( 3 ) THE case of defendant No. 2 in the written statement is that the Will is a forged one it does not bear the thumb impression or signature of the mother. At the relevant time, the testatrix was lying seriously ill for over a year before her death and after a cerebral stroke, which resulted in paralysis, she had lost her power of movement and also speech. She had no sound disposing state of mind and was incapable of making any testamentary disposition at the relevant time.

( 4 ) THE trial court has accepted the Will to be a genuine one and has held that the testatrix had executed the Will while in sound disposing state of mind and that was out of her free volition.

( 5 ) WHILE the appeal was taken up for hearing, two 'preliminary objections were raised by the respondents, namely, the appeal having abated against respondent No. 5, the Court cannot proceed with the appeal; and the addition of respondents Nos. 3, 4 and 5 having been made after the period of limitation, the appeal as a whole has been barred by limitation. Counsel for both sides agreed that the preliminary objections should be disposed of first and, accordingly, arguments for both sides have been confined only to the aforesaid two points.

( 6 ) UNDISPUTEDLY, respondent No. 5 was a daughter of the testatrix. She was also a party in the Court below. By way of amendment, she was impleaded as a party in the appeal, but the appeal has been dismissed as against her for not taking steps. It is contended by the learned counsel for the respondents that there would be conflict of decisions if the appeal is allowed, and the Court cannot proceed with the appeal, inasmuch as it has already been dismissed as against respondent No. 5. The learned counsel for the appellant contends that the suit being under the Indian Succession Act and for grant of Letters of administration, it cannot be treated as a properly constituted suit under the code of Civil Procedure and, as such, the provisions of the Code of Civil procedure relating to abatement are not applicable. The principle in this respect has been laid down in State of Punjab v. Nathu Ram, AIR 1962 SC 89, and it has been held that 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 will 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 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 succes