JUDGMENT

Raghubar Dayal, J. - Dwarka, the Plaintiff, entered into an agreement for sale of two houses with Defendant No. 1 on the 17th of May, 1944, and paid certain amount as earnest money. On the 25th of May, 1944, Defendant No. 1, however, told the houses to Raghunath and Jagarnath, Defendants Nos. 2 and 3 respectively. Dwarka, therefore, instituted the present suit for specific performance of the con tract of sale by Defendant No 1 and the subsequent vendees, Defendants Nos. 2 and 3.

2. Defendant No. 1 did not contest the suit. He died during the pendency of the suit and his widow Smt. Punni was substituted in his place. Defendants Nos. 2 and 3 contested the suit. The trial court dismissed the suit. On appeal by the Plaintiff the suit was decreed. Against the appellate decree Raghunath and Jagarnath filed this second appeal.

3. During the pendency of the appeal Smt. Punni died. An application for substituting her legal representative was filed beyond the prescribed time and was rejected.

4. Jagarnath, one of the Appellants, also died and his legal representatives have also not been brought on the record.

5. It is clear, therefore, that Jagarnath's appeal against the decree abates and that the appeal also abates against Smt. Punni. In the circumstances, a preliminary objection has been raised that the appeal abates as a whole. I have heard the learned Counsel for the parties on this concention and agree with the preliminary objection.

6. The relief sought in the suit was that a decree for specific performance of the contract directing the Defendants to execute a registered sale deed of the two houses, in accordance with the terms of the agreement of sale, in favonr of the Plaintiff within the time fixed by the court, be passed.

7. It follows, therefore, that the decree of the appellate court decreeing the suit means that the vendor's representative Defendant No. 1 and the vendees, Defendants 2 and 3, were to execute the sale deed of the houses in suit in favour of Dwarka, the Plaintiff.

8. This decree, in view of the death of Smt. Punni and the non-substitution of her legal representatives, becomes final against her and therefore enjoins that she and, in case of her death, her legal representatives' will execute the necessary sale deed along with the other two Defendants. Such a provisions of the decree could have been altered even if she had not appealed in case this Court had found that the present appeal should succeed and that the Plaintiff's suit be dismissed. Such a relief in her favour (sic) have been given by this Court if she had not been impleaded as a Respondent in the appeal but cannot be given now when she had been impleaded as a Respondent and the appeal against her abates. The benefit of the provisions of Rule 33, Order 41, Code of Civil Procedure, can be given by the court to all parties of the suit so long as the suit had not abated against any of the parties on account of its death and the non-substitution of the legal representative.

9. Similarly the result of abatement of Jagarnath's appeal is that a decree in favour of the Plaintiff against Jagarnath stands and that Jagarnath's representatives are bound by the decree which requires them to execute the sale deed along with the legal representatives of Punni and with Raghunath, the other Appellant.

10. It follows that even in case Raghunath's appeal succeeds the decree in his favour to the effect that the suit against him should fail and that he was not to execute the sale deed would be inconsistent with the decree which has become final against Jagarnath's representatives and Purni's representatives and requires them along with Raghunath to execute a sale deed of the property in suit in favour of the Plaintiff. When the effect of the abatement of the appeal of one of the Appellants is the possibility of the existence of two such inconsistent decrees which cannot be executed, it must be held that the appeal abates as a whole so that such undesireable situation does