The provisions of Order 41, Rules 4 and 33 of the Civil Procedure Code empower the court to pass an order in favor of a party to the suit or application though not a party to the appeal.

1. Brij Mohan Lal obtained an ex parte decree on 22nd April 1954 against his tenant Mannu Lal for ejectment and for recovery of arrears of rent. Mannu Lal on 8-6-1954 applied to get this ex parte decree set aside. During the pendency of this application Mannu Lal died and his three sons and the widow came on the record as his legal representatives. The trial Court on 5-8-1955 dismissed this application. Against this decision Raj Kishore and Anand Kishore (two sons of Mannu Lal deceased) filed an appeal in the conrt of Senior Sub-judge, Delhi. These appellants, however, did not implead their third brother Rup Kishore and their mother Shrimati Chand Rani as appellants or respondents. The Senior Sub-Judge accepted the appeal by order dated 16th August 1955 and set aside the ex parte decree on payment of Rs. 32/-as costs. Against this order of Sr. Sub-Judge the landlord Brij Mohan Lal filed revision petition in this Court. When the revision came before Mehar Singh J. the learned counsel for the appellant urged that the appeal before the Senior Sub-Judge was incompetent in the absence of all the legal representatives of Mannu Lal. Finding that there was a conflict in decisions on the point Mehar Singh J. referred this master to larger Bench and it has now come up before us for decision.

2. The question raised on behalf of the landlord petitioner is this. Under the ex parte decree for eviction all the legal representatives of Mannu Lal are liable to be evicted. The application of Mannu Lal for seating aside ex parte decree was dismissed when his legal representatives were on the record. Therefore, on the date of that order they all became liable to bo evicted. Only two of the legal representatives, however, filed the appeal without implcading the other two. The appeal was, therefore, not properly constituted and was incompetent. In any case the legal representatives not implcaded are now liable to eviction as the order refusing to sot aside the ex parte decree has become final. In these circumstances it was urged that no useful purpose would be served by hearing the appeal because it must fail in the absence of the two legal representatives who were not before the appellate court. On the other hand the tenants case is that the appeal by some of the applicants was competent and relief to the non-implead-ed applicants could be granted under Order 41, Rules 4 and 33, Civil Procedure Code,

3. Now order 41 relates to proceedings to be taken in appeal. There is no express provision in Order 41 indicating parties that should be impleaded when filing an appeal. Order 1 deals with joinder of parties in a suit. Under Order 1, Rule 1, Civil Procedure Code, all persons may join as plain- tiff who claim relief arising out of the same transaction and all persons under Order 1, Rule 3 may join as defendants against whom the relief is claimed.

4. In the present case it is not denied that all the four heirs of Mannu Lal deceased claimed relief against the landlord on a ground common to all of them. It is also obvious that the two appellants did not claim any relief against their brother and mother. They claimed relief only against the landlord who was duly impleaded as respondent. It follows that if the other two heirs had been impleaded in the appeal as respondents then they would have been only pro forma respondents. There is no express provision in the Civil Procedure Code which lays down that an appeal filed without impleading pro forma respondents would be incompetent, nor has any such provision been brought to our notice. In the absence of any such provision the appeal must be held to be competent and must be heard and decided.

5. It now remains to be determined if in the absence of the oilier heirs of Mannu Lal the appellants can or cannot be given any relief in the appeal. It has been urged on behalf of the landlord that no relief claimed by the appellants can be granted without creating two conflicting orders. If in appeal the ex pa