Malik, J.:— This revision has been filed by the defendant against an order of the learned Additional Civil Judge of Jaunpur dismissing his appeal on the ground that the whole appeal has abated.
One Ram Khelawan filed a suit against five persons for ejectment from a shop and claimed arrears of rent on the allegation that the defendants were his tenants. Defendants Nos. 1 to 3 claimed that they were the owners of the property. Defendant No. 4 did not put in any defence. Defendant No. 5 pleaded that he was a mortgagee from the predecessor-in-interest of defendants Nos. 1 to 3 and he was entitled, therefore, as a mortgagee to rremain in possession of the property.
The trial court held that the plaintiff had been able to prove his title and was the owner of the shop and the defendants had no right to remain in possession of the same, and on these findings the trial court decreed the plaintiff's suit in its entirety.
Thakur Prasad, defendant No. 3, alone appealed and he impleaded the other defendants as respondents to the appeal. During the pendency of the appeal on the 12th of August, 1942, Baldeo who had claimed that he was a mortgagee on behalf of Thakur Prasad and the other two defendants died. No application was made for substitution of names. When the matter came up before the learned Additional Civil Judge on the ground that in case he interfered in appeal there would be two inconsistent decrees he held that the whole appeal had abated. The decision, to my mind, is rather remarkable because a defendant against whom there is a decree is not bound to implead the other defendants if it is not necessary for him to do so and if he does not so desire. I do not know of any provision in the Civil Procedure Code which makes it obligatory for a defendant to implead his co-defendants as pro forma respondents in an appeal. It is no doubt desirable that all the parties should be before the appellate court so that their rights may be completely determined. In this case Baldeo was claiming a derivative title from defendants Nos. 1 to 3 and I do not see how it prevented the learned Additional Civil Judge from inquiring into the title as between the plaintiff and the defendants Nos. 1 to 3 merely because a person who was claiming to be the mortgagee on behalf of defendants Nos. 1 to 3 had died.
To my mind, the case has been wrongly decided by the lower appellate court. I, therefore, set aside the order of the court below, allow this revision and send the case back to the court of the Additional Civil Judge of Jaunpur for decision of the appeal on merits. The applicant will be entitled to the costs of this revision.