JUDGMENT

1. This appeal arises out of a suit for declaration filed against defendants 1 to 6. In execution a mortgage deed standing in the name of defendant 7 and another was attached. Defendant 1 filed an application for attachment and defendants 2 to 6 filed applications for rateable distribution. The same property is now under attachment on behalf of defendants 1 to 6. The property attached is the mortgagee rights of Sri Krishna Das in the property. The cause of action in the present suit is given in Paras. 8, 45 and 5 of the plaint.

Para. 3. In execution of the decrees mentioned in para. 2 defendant 1 has got attached and put to sale the property mentioned below in the plaint, while defendants 2 to 6 applied for rateable distribution.

Para. 4. The attached property mentioned below is the joint family property of the plaintiffs and defendant 7 and it is neither attachable nor saleable in any circumstances in execution of the decree of defendants 1 to 6.

Para. 5. The cause of action accrued to plaintiffs in June 1936 when the property in suit mentioned below was attached.

2. Defendants 2 to 6 put up the same defence, namely that the property attached belongs to defendant 7 only and the plaintiffs have no right in it. The Court came to the decision that the property was not joint family property. The decree is a joint decree and the claim against the defendants. One of the respondents died and his legal representatives were not brought on the record by the plaintiffs-appellants. The respondent's learned Counsel raised a preliminary objection that in this case the appeal abates in toto. For this proposition he relies on Ghulam Abbas v. Safdar Jah Zahid Ali Mirza, A.I.R. 1941 Oudh 219. This was a case under the Encumbered Estates Act, in which it was held that the appeal did abate as a whole, because it would lead to conflicting decisions since creditors' interests in defeating the debtors' application were joint and indivisible. Two tests were given, (1) whether the interests of the defendants in the suit are joint and indivisible so that the interest of the deceased cannot be separated from those of the rest and (2) whether in the event of the appeal being allowed as against the remaining respondents, there would or would not be two inconsistent and contradictory decrees in the same case in respect of the same subject-matter. It will be seen, however, from a reference to p. 222 that the case was decided in the light of the special scheme of the Encumbered Estates Act. The judgment says:

In short the intention of the Act is to secure the entire property of the landlord under the control of the Court, compel all his creditors to prove their claims against him and to disencumber his property of all debts under a special scheme laid down in the Act.

3. The decision that an applicant is a landlord is in effect a judgment in rem valid against all the world and as regards the whole of his property. Therefore, it seems necessary to join all parties as in insolvency proceedings. Difficulties do not arise usually in insolvency proceedings because there is generally a receiver who represents the estate and all the creditors. Encumbered Estates Act proceedings are insolvency proceedings without a receiver. Similarly as regards the property, if the property is held to be 'that of the applicant, it will be sent to the 'Collector for liquidation of debts of the creditors rateably. It cannot both be sent to the Collector for this purpose and not be sent to the Collector. It is therefore necessary for all parties to be joined. In our opinion, there is a radical difference between insolvency and Encumbered Estates Act proceedings on the one hand and ordinary suits on the other. In Ram Jas Tewari v. Ram Lal Tewari, A.I.R. 1936 Oudh 209 reference is made to the headnote which says:

The question whether an appeal can or cannot proceed in the absence of the legal representatives of the deceased respondent, must depend upon the nature of each case,