S. Barman, J.:— The defendants are the appellants before us. In May 1950, the plaintiffs filed a suit against the defendants alleging that they were trespas ers on the suit land. In September, 1951, there was a decree for ejectment of the defendants. Against the said decree, seven defendants appealed. During the pendency of the appeal one of the defendants being defendant No. 6 Criutamani Paital, died leaving him surviving his heirs and legal representatives. Admittedly, there was no substitution of the deceased's heirs and legal representatives.

2. The only question for consideration on these facts, briefly stated above, is whether it was a case of partial or total abatement. It appears from the frame of the suit, as in the plaint, that it was a suit for declaration of the plaintiff's title. The prayers in paragraph 10 of the plaint are as follows:

“(a) that it be declared that the plaintiff no. 1 through the trustees plaintiffs nos, 2 to 4 has title to the suit lands and that the defendants have no title or interest in it;

(b) that the plaintiffs may be ordered to get delivery of possession of the suit lands through court;

(c) that the plaintiffs may be ordered to get a decree for mesne profits against the defendants;

(d) that the plaintiff may be ordered to get the costs of the suit from defendants;

(e) that the plaintiffs may be ordered to get any other relief which the Court thinks proper in the circumstances of the case.”

3. Furthermore, paragraph 6 of the plaint shows that the defendants had formed a combination. For ready reference I quote here paragraph 6 which is as follows:

“That the plaintiffs after taking delivery of possession let out the, suit lands to their tenants, but the defendants who have formed a combination at the instance of the outgoing marfatdar did not allow the Bhag tenants to cultivate the lands and have been in forcible possession of the suit lands as trespassers.”

4. For the present purpose these facts are sufficient to deal with the appeal before us.

5. Or these materials the learned Munsif decreed the suit against the defendants and declared the plaintiffs' title to the said suit lands and ordered that the plaintiffs do recover possession of the same from the defendants. The defendants appealed to the District Judge bring Appeal No. 252 of 1951. During the pendency of the appeal defendant No. 6. Chintamani Paital died. One Kshetrabasi Paital, describing himself as Chintamani's son, filed a petition on 31-7-1952 for substituting himself, falsely alleging that Chintamani died on 14-6-1952.

6. The plaintiffs-respondent, when they came to know of the petition, made an application on 6-10-1952 for recalling the order of substitution as Chhitumani, in fact, died in December 1901. The Appellants did not appear at the hearing of the application for recalling the order of substitution and the matter was heard ex parte and the order substituting kshetrabasi Paital was vacated. At the hearing of the appeal a preliminary objection was taken on behalf of the plaintiffs-respondents that the entire appeal abated as one of the defendants-appellants was not on record and the application for substitution was disallowed in the circumstances aforesaid. The defendants-appellant contended that the entire appeal did not abate and that if it abated, it abated partially to the extent of the share of the defendant-appellant no. 6 Chintamni Paital alone.

7. It is clear from the pleading that the defendants-appellants were surd as trespassers, alleged to have no right to the suit lands and it as alleged that they forcibly took possession. In the written statement, the defendants did not state that each of the defendants possessed separate piece of land but they only alleged that they were in possession of the suit lands as Bhag tenants for over twenty years. It was for the defendants to prove whether they possessed the kinds jointly or separate but they did not say cither in the written statement or adduce any evidence in that behalf before the learned Munsif.

8. The learned ??? decreed the plaintiffs' suit on contest against the defendants with costs and the plaintiffs' title to the suit lands was by the said decree declared and that the plaintiffs thereby obtained a decree for recovery of possession of the suit lands from the defendants. On appeal, the learned District Judge found that the whole appeal had abated and, therefore, dismissed the appeal on that ground. The present appeal before this Court is from the said judgment of the learned District Judge.

9. The learned Counsel appearing for the appellants cited before us numerous decisions in support of his contention that it was a case of partial abatement. In a latest decision of a Division Bench of this Court, consisting of Rao, J. and myself, in Harihar Pati v. Sisir Kumar Bose in M.A No. 78 of 1952. D/- 6-8-1958: (AIR 1959 Orissa 41) where after dealing with most of the decisions referred to by the learned Counsel for the appellants, we held that it was a case of total abatement. The facts in the present case before us were substantially similar to the in AIR 1959 Orissa 41 referred to above.

10. In another recent decision of this Court in Bhajan Jena v. Panchu Jena, 24 Cut LT 36 : (AIR 1958 Orissa 246), Rao. J. held that where the infer or the purchasers were separable, then in a suit declaring the invalidity of such a sale deed, death of or of the vendees and abatement of the appeal against him did not abate the appeal in toto, but where the sale deed was in favour of persons in undefined shares, the death of one and abatement ami 1st him abated the entire appeal. These decisions holding total abatement do not support the appellant's contentions.

11. Now we proceed to discuss some of the important decisions of different High Courts in India relied on by the learned Counsel for the appellants in support of his contention that it was a case of partial abatement.

12. In the Full Bench decision of the Allahabad High Court Baij Nath v. Ram Bharose, AIR 1953 All 565, it was held as follows:

“If in a suit a plaintiff makes a claim against a number of defendants on common grounds and all the defendants also contest suit on common ground and the suit is decided in favour of the plaintiff against all the defendants, an appeal filed by all the defendants can be heard in favour of the remaining defendants after one of the appealing defendants has died during the pendency of the appeal and his legal representatives have not been brought on the record so that his appeal has abated, only if the rights and interests of the surviving defendants were not joint and indivisible with those of the deceased defendant, and in event of the success of the appeal, it does not lead to two inconsistent and contradictory decrees.”

13. The appellants relied on paragraph 4 of the judgment. We fail to see how the observations made herein help the appellants. In our case the defendants as trespassers had formed a “combination” and their shares in the suit land were not ascertained or ascertainable. The rights and interests of the surviving defendants were joint and indivisible with those of the deceased, if any, and in the event of the success of the appeal it is bound to lead to two inconsistent and contradictory decrees. Therefore, the Allahabad Full Bench case does not help the appellants.

14. Then the learned counsel for the appellants also relied, on a Full Bench decision of the Lahore High Court in Nanak v. Ahmad Ali, AIR 1946 Lah 399. In this case the facts shortly were that the plaintiff-respondent brought a suit for cancellation of the sale deed executed by one K, defendant No. 1 in favour of N. and K. defendants Nos. 2 and 3. This suit was dismissed by the Court of first instance. The learned appellate Court allowed the plaintiff's appeal and decreed his claim. Against this decree N. and K. defendants Nos. 2 and 3, filed an appeal to the High Court.

15. When the appeal came up for hearing a preliminary objection was taken on behalf of the plaintiff-respondent that N. having died and there having been no application for substitution, within time, the appeal had accordingly abated and further that inasmuch as there was a joint decree against N. and K. the appeal should be deemed to have abated in its entirety and could not proceed at all. There were certain distinguishing features in the Lahore case. This was in a suit of declaratory nature. Besides in the absence of specification of shares in the sale deed, N and K should be presumed to have purchased the property in equal shares.

16. The Lahore High Court took into consideration paragraph 2 of Section 45 of the Transfer of Property Act, which provides that in the absence of evidence as to interests in the fund to which the co-vendees N. and K. were respectively entitled or as to the shares of the consideration which they respectively advanced, N. and K. shall be presumed to be equally interested in the property. This aspect of the matter gives the Lahore decision a completely different colour from the present case that we are considering in the present appeal. In the light of the special features of the case, the Lahore Full Bench was perfectly right in finding in favour of partial abatement.

17. In the present appeal before us the position, however, is different. Here it was a declaratory suit against the defendants as trespassers who had formed a combination resisting the claim of the plaintiff. One of the trespasser-defendants having died, it naturally follows that if the appeal was allowed it would lead to inconsistent and contradictory decrees and thus an anomaly would be produced by creating one state of things for one purpose and another state of things for another purpose, as Chief justice Rankin expressed in Hari Charan v. Kalinada, AIR 1929 Cal 519.

18. In Sripad Balvant v. Nagu Kushaba, AIR 1943 Bom 301, it was held that the death of one of the two joint owners during the pendency of an appeal does not prevent the appeal being prosecuted by the others. In fact there is no rule that all joint owners must be parties to appeals. The facts in brief, were these: The predecessors-in-title of the plaintiff-appellant were, and the plaintiff-appellant (as transferee from original owners during the pendency of the Second Appeal before the High Court) was the Inamdar of lands in a certain village in Satara District.

19. The defendant was a permanent tenant by virtue of the presumption under S. 83, Bombay Land Revenue Code. The question before the High Court was whether the original plaintiffs were entitled to enhancement of rent. The lower appellate Court held against the plaintiffs. The original plaintiffs appealed to the High Court being Second Appeal No. 119 of 1935. During the pendency of the said Second Appeal No. 119/1935, the original plaintiffs sold all their rights to a third party on 31-7-1936 after which they ceased to be interested in the property in dispute. On 12-8-1937, the original plaintiff-appellant No. 2 died and a belated application by his sons to be brought on record was dismissed on 5-3-1941.

20. By an order of the High Court made on 25-6-1941, the new owner was made plaintiff-appellant and permitted to proceed with the appeal. In the High Court a preliminary objection was taken that the appeal had abated because one of the appellants had died and a belated application by his sons to be brought on the record was dismissed. It was contended on behalf of the defendant-respondent that because the appellant-plaintiffs were joint owners they must all participate in the appeal and as the appeal had abated in the case of appellant No. 2 it should be taken to have abated altogether. The High Court took the view that there was no substance however in that point.

21. In the judgment the High Court observed that the appellants had sold all their rights to a third party, after which they ceased to be interested in the property in dispute and the new owner had been made appellant and permitted to proceed with the appeal by an order of the High Court, and the Bombay High Court took the view that the case was clearly covered by O. 41, R. 4 of the CPC and did not accept the defendant-respondent's preliminary objection and the appeal was allowed. In view of this special feature of the Bombay case, it is clearly distinguishable from the case before us.

22. In Malobi v. Gaus Mohammad, AIR 1949 Nag 91, it was held that the question whether, the partial abatement operates as an abatement of the entire appeal depends upon the nature of the claim and the circumstances of each particular case. It will also depend on the nature of the decree appealed against and the relief claimed in appeal. It was further held that O. 41, R. 4 cannot override or create an exception to O. 22, Rules 3 and 1, 1 and in the case of one or more appellants dying even where a decree proceeds on a ground common to all, the matter must be governed solely by the provisions of those latter rules. Order 41, Rule 4 does not empower the appellate Court to set aside an abatement and to reverse or vary a decree which has become final against the deceased appellant. This decision completely demolished the contentions made on behalf of the appellants before us.

23. In Mritunjoy Das…Defendant 2, v. Sm. Sabitrimoni Dasi…Plaintiff, ., AIR 1950 Cal 59, the appeal arose out of a suit for specific performance of a contract. Defendant No. 2 was the appellant before the High Court. The plaintiff's case was that a Bank, which was represented in the proceedings through its Secretary defendant No. 2, had agreed to sell certain lands to the plaintiff under certain conditions. That offer was accepted but the Rank did not accept the amount and the property was sold by the Bank to defendant No. 1. Hence, a suit for specific performance of the contract. The learned Minsif decreed the suit in part directing defendant No. 2 to execute and register a Kabala in favour of the plaintiff. An appeal was taken against tin's decision by defendants Nos. 1 and 2 before the Court of the District Judge. The appeal was dismissed. A. second Appeal was filed by defendant No. 2. During the pendency of the appeal in the High Court, defendant No. 1 died and no steps were taken within 90 days by the appellant for bringing the heirs on the record. The application for setting aside the abatement and for substituting the heirs of the deceased, was rejected. At the time of the hearing of the appeal, on behalf of the respondents a preliminary objection was taken to the competency of the appeal.

24. It was contended that the appeal having abated, so far as the defendant No. 1 was concerned, the present appeal by defendant No. 2 was not properly constituted and ought to be dismissed. The appellants relied on O. 41, R. 4 under which, as it was argued, it was competent for the High Court to hear the appeal and give relief even to the dead defendant. The Calcutta High Court, however, while taking the view that on the facts of that case O. 41, R. 4 of the CPC could not be attracted because there was already an order of abatement recorded by the Court, as had been decided in some earlier decisions of the said High Court, held that the appeal having abated against the heir of the deceased defendant No. 1, defendant No. 2 was not competent to maintain the apnea and accordingly the appeal was dismissed. In my view the second sentence of paragraph 10 of the judgment of the Calcutta High. Court in the case under discussion, was the ratio decided the very basis of the decision in the Calcutta case.

25. As in the Calcutta case, so in the case before us, the belated application for substitution was I rightly disallowed and consequently there was already abatement under O. 22, R. 4 of the CPC which would not be disturbed by O. 41, R. 4. It is now settled law that Order 41, R. 2 cannot supersede the provisions of O. 22, Rules 3 and 4.

26. On the theory of contradictory decrees, pertinent to the point under discussion, the learned counsel for the appellants relied on a decision of the Allahabad High Court in Ram Bharosey v. Mahadeo Singh, AIR 1953 All 84. This was a decision of a Single Judge who observed that:

“The mere fact that the success of the appeal might bring into effect two conflicting decrees is by itself hardly a reason for ordering the abatement of the appeal”,

27. Relying on an earner decision the Oudh Court to Lechmi Narain v. Musiddi Lal. AIR 1942 Oudh 155. The facts he the Allahabad case were these: A preliminary decree for sale was made in a mortgage suit against three sons of the original mortgagor and two ???. A final decree was passed in due course. On an application for amendment of the decree under Section 8 of the U.P Debt Redemption (Act Act. XIII of 1940) there was an order for amendment of the leal decree by the learned Munsif, which, on appeal, was upheld by the District Judge. The mortgagee appealed from the said order by way of a Second Appeal. A preliminary objection was taken at the time of the hearing of the appeal on the ground that the entire appeal had abated by reason of its abatement against one of the transferees of a portion of the hypothecate properly. It was urged that by reason of the, a ??? against one of the transferees, his liability had been finally determined and could not on disturbed for if the appeal succeeded it would bring into existence a ??? decree an eventuality which must be avoided. The Allahabad High Court did not accept this argument and expressed that there were three answers to the preliminary objection and each of them, in its opinion, was sufficient for over-ruling the contention. The answer No. 1 was that the mere fact that the success of the appeal might bring into effect two conflicting decrees is hardly a reason for ordering the abatement of the appeal. In the judgment a passage from the Oudh decision reported in AIR 1942 Oudh 155 Just referred to above was quoted and the passage was as follows:—

“The law Courts as far as possible will avoid inconsistency but it is their business to do justice between parties, and if by a pedantic adherence to consistency injustice will be done, they will prefer justice to consistency and therefore inconsistency is not an absolute test.”

28. I am not convinced as to the correctness of the applicability of these observations in the present contest and I do not agree with the view as expressed either in the Allahabad or the Oudh decision referred to above, having regard to the weight of authorities holding tile contrary view based on sound reasoning, which I have already discussed above as also in the judgment which I recently delivered in M.A No. 78 1952: (AIR 1959 Orissa 41) already referred to above. However, as to the ultimate conclusion in the said Allahabad decision reported in AIR 1953 All 61 referred to above. I think it was right for the alternative reasons (described in the judgment as answers (2) and (8) to the preliminary objection) that the Allahabad High Court gave in paragraph 2 of the judgment, namely, as answer No. 2, that the interest of one of the transferees in the mortgage-deed and therefore in the decree was separate and refusal to amend the decree so far as the other respondents were concerned, will not necessarily affect the rights of the said particular transferee adversely. Furthermore, answer No. 3 was that the amendment was made at the instance of one of the debtors Mahadeo Singh alone and the other debtors were not shewn to be entitled to the benefits of the Debt Redemption Act and were not made parties to the proceedings under Section 8 of the U.P Debt Redemption Act. The amendment of the decree then fore must be deemed for his own benefit alone. All the other judgment-debtors, including the one against whom the appeal had abated, were brought on the scene only when the mortgagee decree-holder went up in appeal but that fact did not make them either interested in the result of the appeal or necessary parties thereto, ??? to the peculiar features ??? Allahabad ???. I am inclined to a we which the Karaite contusion of the Allahabad High Court for the reasons described in the Judgment as answers Nos. 2 and 3. But I do not agree with the answer No. 1 of the Allahabad Hish Court, as expressed in the said judgment, relating to conflicting decree.

29. For authority on the theory of contradictory decrees, while looking for guidance from decisions of different High Court in India, I come to find a clear exposition of the saw on the subject made by a Division Bench of our own High Court in Sranga Bhusan Samant v. Uchhab Shahu ILR (1955) Cut 455 : 21 Cut LT 828: ((S) AIR 1955 Orissa 179) (Naresimham and Rao JJ.) where it was held as follows: (Page 430 para 9 (of ILR Cut): (pp. 180-181 para 9 of AIR):

“The effect of reading Order 22, Rule 4 Sub-rule (3) with Order 22, Rule 11 is drat where within the time prescribed by law no application is made to implead the legal representatives of the deceased respondent, the appeal shall abate, as against the deceased respondent and an order that the appeal abated against the deceased respondent No. 4 had already been made. Though there is no provision in the Code of Civil Procedure that in such cases the entire appeal abates as a whole, the statutory provision being only that the appeal abates as against the deceased respondent, the question whether the partial abatement leads to an abatement of the appeal in its entirety depends upon general principles of law.

These principles recognized in various decisions are that if the case is of such a nature that the absence of the legal representatives of the deceased respondent prevents the Court from hearing the appeal as against the other respondents then the appeal abates in toto. Whether the appeal can or cannot proceed in the absence of the legal representatives of the deceased respondent is dependent upon the principle whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory-decrees in the same litigation with respect to the same subject-matter. A Court should not be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole.”

30. The same view was also upheld by the Assam High Court in Sonahar Ali v. Mukbul Ali AIR 1956 Assam 164 (Sarjoo Prasad C.J and Ram Labhaya, J.) and also by the Patna High Court in Ramdhari v. Rambharosa* AIR 1955 Pat 237, wherein Imam C.J (as he then was) in his judgment laid down a test, in such cases, which was as follows;

“One of the tests as to whether an appeal as a whole had abated is as to whether if the appeal succeeds there will be in existence conflicting decrees. If such be the position, then the appeal as a whole abates and not partially. In my opinion, different considerations arise between the abatement of a suit and the abatement of an appeal because in a suit if there is an abatement it is before the passing of a decree and the question of conflicting decrees coming into existence does not arise, x x x x x x it seems to me that no substitution of legal representatives in place of the deceased appellant 2 having taken place, in the circumstances of this case it must be held that the appeal as a whole has abated and not merely that the appeal of the deceased appellant 2 only has abated.”

31. This aspect of the argument is most convincing to us and we have no doubt that on the facts of the case before us there is no escape from the possibility of anomaly of two contradictory decrees because if the appeal succeeds, there may be in existence two conflicting decrees.

32. The learned counsel appearing for the respondents successfully distinguished all the cases cited on behalf of the appellants and had drawn our attention to the peculiar features of the present case before us, namely, that there was no averment in the written statement that the defendants were holding separate plots; nor did they adduce evidence in this behalf. Furthermore, there was no evidence of how they cultivated the plots in their respective possession. In view of the joint character of the holdings by the defendants as trespassers forming a ‘combination’ against the appellants the decisions relied upon on behalf of the appellants supported the contentions made on behalf of the respondents.

33. The learned Counsel for the appellants, as a last rescrt, relied on Order 41, Rule 4 and contended that, in any event, the Court can reverse or vary the decree to do justice to the parties. The simple answer to this argument was that Order 41, Rule 4 can be invoked only if it can invade the domain of Order 22, Rules 3 and 4. In other words, Order 41, (Rule 4 cannot supersede the mandatory provisions of Order 22, Rules 3 and 4. Besides, Order 41, Rule 4 has no application to dead persons. It is only applicable to living persons. The Patna High Court (Full Bench) in Ramphal Sahu v. Satdeo Jha, AIR 1940 Pat 346, which we have followed throughout, proceeded on the basis that Order 41, Rule 4 suggested that all the plaintiffs or the defendants were alive at the time when the decree of the appellate Court is passed.

34. The wording of Order 41, Rule 4 is not applicable to a case where one of the parties, as in the present case, has died during the pendency of the Appeal. The Full Bench held that by reason of provisions of Order 22, Rules 3 and 11, the appeal, in so far as it concerns the deceased appellant, abates and as the abatement, if not set aside, has the force of a decree, the matter becomes final as against the deceased appellant. There is nothing in Order 41 Rule 4 which permits a Court to disturb the finality of the decree as against the deceased appellant.

35. In this view of the law and in the light of the facts and circumstances in the present case, we find that the appeal totally abated. The result, therefore, is that the judgment and decree of the lower appellate Court are affirmed and this appeal is dismissed with costs.

Das, J.:— I agree.

V.S.B

36. Appeal dismissed.