Rajadhyaksha, J.:— This is an appeal against an order passed by the District Judge of Belgaum in civil Appeal No. 79 of 1939, confirming the order of the Second Class Subordinate Judge of Chikodi in an application under section 47 of the cpc, in regular Darkhast No. 377 of 1938. The circumstances that gave rise to this second appeal are as follows:

2. One Balwant Sakharam Naik had filed regular suit No. 195 of 1928, against one Dhondo Khando Naik and two others for partition of his alleged half share in Revision Survey No. 23 of Chinchani, for mesne profits of Rs. 150 accrued due before the date of the suit and for future mesne profits from the date of the suit. The suit was dismissed with costs. He preferred Appeal No. 315 of 1931 in the District Court of Belgaum against the decree passed by the Subordinate Judge of Chikodi. But pending the disposal of the appeal, Balwant Sakharam died. His two sons, Chintaman and Waman, were then brought on record as his legal representatives. The first appellate Court dismissed the appeal and confirmed the decree of the trial Court. Chintaman and Waman then preferred second Appeal no. 611 of 1933 to the High Court. Pending the disposal of this appeal Chintaman died on 24th July, 1937. This fact, however, was not brought to the notice of the High Court, and Sen, J. on 9th September, 1937, reversed the decree of the lower Courts and decreed the plaintiffs' suit with costs. The present darkhast was then filed by Waman and the son of Chintaman for partition of the suit property in accordance with the decree of the High Court. The judgment-debtor 1 then gave an application in which he contended that the decree passed by the High Court in the second appeal was a nullity inasmuch as the heir and legal representative of the deceased Chintaman had not been brought on record before the decree of the High Court was passed and that therefore no execution of that decree could be taken out. He therefore prayed that the darkhast application be dismissed with costs.

3. The Second Class Subordinate Judge of Chikodi before whom the execution application was filed held that the decree passed by the High Court in Second Appeal no. 611 of 1933, was not a nullity and was capable of execution. He futher held that although the appeal abated so far as the deceased Chintaman was concerned, the decree had not become incapable of execution. He therefore dismissed the application with costs. Against that order the judgment-debtor filed an appeal in the District Court of Belgaum, and the learned District Judge confirmed the order of the Subordinate Judge and dismissed the appeal. Against that order judgment-debtor 1 has filed this second appeal. As this matter has come up for consideration in execution, the only contention open to the judgment-debtor to raise in execution is that the decree was a nullity; otherwise an executing Court has no power to question the jurisdiction of the Court which passed the decree under execution. There is a ruling to this effect in 54 Bom. 961. Realising that the only way in which the decree of this Court in second appeal could be challenged was by contending that the decree was a nullity, an application was made by the judgment-debtor to this Court in civil Application No. 82 of 1938. This application was presumably made in accordance with the ruling of the Madras High Court in A.I.R 1923 Mad. 582, in which it is laid down that:

“When the order or a decree of a Court is a nullity, a party interested in showing it to be a nullity may apply to the Court to vacate it and if the Court is satisfied about the facts, it ought to do so. Such an application need not be filed under any particular section of the Code and the absence of a section does not render the application incompetent.”

4. Accordingly, civil Application No. 82 of 1938 was filed in this Court in which it was prayed that:

“The judgment be reviewed and vacated, and that the appeal be re-heard on the ground that the decree was void, either wholly or at least so far as appellant 1's interest was concerned.”

5. This application was heard by Sen J. who had passed the decree in second appeal in pursuance of which execution was taken out. Sen J. rejected this application summarily on 21st February 1938. The rejection of this application was tantamount to a finding of this Court that the decree passed by this Court was not a nullity, and the appellant judgment-debtor is bound by that decision. We therefore, think that it was hardly open to him to agitate the same question again in resisting the execution application. This aspect of the matter does not appear to have been considered by the two Courts below, presumably because they were not aware that such an application had been filed before this Court and had been subsequently rejected. Even on merits we are of opinion that the view taken by the two Courts that the decree which is sought to be executed is not a nullity is correct. This question can be considered from two points of view: (1) as regards representation of the estate of the deceased plaintiff; and (2) as regards the applicability of O. 41, R. 4, on which both the lower Courts have relied for holding that the decree in second appeal was not a nullity. As regards the first question, viz., about representation of the estate of the deceased plaintiff, Balwant Sakharam, it has to be remembered that when he filed the suit, he was the manager of the joint undivided Hindu family, and when he died, his sons, Chintaman and Waman, were brought on record as his legal representatives. The question as to who is the proper legal representative of a person who is the head of a joint Hindu family is not altogether free from difficulty and there have been rulings of the various High Courts which have taken somewhat conflicting views on the subject. The Bombay High Court has held in 42 Bom. 5043 that where a coparcener in a joint Hindu family dies, the survivors are not his legal representatives inasmuch as they take the estate by survivorship and not by succession. This case, however, has been doubted in a subsequent decision of this Court in 55 Bom. 7094. at page 724 Broomfield, J. observes as follows:

“I am inclined to think that the real basis of the decision should be that the son who takes the joint family estate by survivorship should be regarded as a ‘person who in law represents the estate of a deceased person’ within the meaning of the first part of the definition in S. 2(11). He represents the estate which was previously represented by his father. In 34 Cal. 6425, Mitra J. expressed the opinion that, apart from heirship as regards the self-acquired property of a deceased father, a son in a joint family governed by the Mitakshara system must be held to be his father's legal representative. The reasoning upon which this view is based appears to me to have great weight and with all respect to the learned Judges who decided 42 Bom. 504, I greatly doubt whether it has been rendered obsolete by the new definition of ‘legal representative’ and the new S. 53 in the Code of 1908. Sooner or later I think 42 Bom. 504 may have to be considered by a Full Bench,”

6. That case has in fact been held not to be good law in the Full Bench case in 42 Bom. L.R 10666. It would, therefore, appear that when the deceased coparcener was the father of the family who represented the joint family, his son is, according to the decisions of the Bombay High Court in 42 Bom. L.R 1066 and of the Madras High Court in A.I.R 1925 Mad. 4567, “a person who in law, represents the estate of a deceased person”. When, therefore, Balwant Sakharam died, the person who should have been brought on record as his legal representative was his eldest son Chintaman, and although Waman was joined as a legal representative along with Chintaman, that joinder was not illegal and at the most may be regarded as superfluous. Then later on while the second appeal was pending, Chintaman himself died and the next succeeding managing member of the family, viz., Waman should be regarded as representing the estate of the original plaintiff, Balwant Sakharam Naik. He was already on record and it was he who prosecuted the second appeal and obtained a decree in favour of the estate of the original plaintiff. In this view of the matter, it seems to us that there was a proper representation of the estate of the original plaintiff, and the decree cannot therefore, be regarded as a nullity.

7. Even assuming that after the death of Chintaman, some other persons, including Waman, were entitled to come on record as the legal representatives of Chintaman, it does not follow that because these other persons had not come on record the decree obtained by Waman alone was a nullity. Waman was one of the two appellants and was a joint owner of the land in suit and was in joint possession of it. As joint tenant he had interest in every part of the estate and was owner along with others, of the whole estate. It cannot, therefore, be said that there was no representation at all of the estate of Chintaman when Chintaman died. There have been rulings to the effect that even when the estate of the deceased person is not fully represented, the decree obtained is not a nullity. We would refer in this connexion to the case in 58 Mad. 4078. At page 415 Varadachariar J. observes as follows:

“Some of the steps in the arguments bearing upon the above question are rendered doubtful by conflict of authority. Some decisions put a very strict construction upon the rules in O. 22 and go to the length of holding that, unless all the legal representatives are actually on record, there can be no representation at all and the whole decree is void. See, for instance, A.I.R 1933 Lah. 3569, 30 All. 11710, and 100 I.C 41811. The preponderance of authority is however in favour of the view that there will be no abatement if at least some representatives are on record. See, for instance, 4 Pat. 32012 and 7 Lah. 43813. See also 30 M.L.W 99514 At p. 1007. Apart from the provisions of O. 22, the question whether, in any suit, an estate can in the first instance be represented by some of the heirs entitled thereto in the absence of other heirs has often come up for consideration and the preponderance of authority is in favour of the view that, in the absence of fraud or collusion, the representation by some of the heirs will be sufficient representation: see, 26 Mad. 20015, A.I.R 1927 Mad. 107116, A.I.R 1928 Mad. 119917 and 26 Bom. L.R 37518.”

8. Very nearly to the same effect is the decision of my learned brother Lokur, J. in 45 Bom. L.R 83419. He held in that case, that:’

“Where, on the death of a sole appellant who is a Hindu, his only son is brought on the record as his legal representative, under O. 22, Rr. 3 and 11 of the CPC 1908, the appeal does not abate if his widow, who becomes his heir under the Hindu Women's Rights to Property Act, 1937, is not brought on the record as his legal representative.”

9. The High Court of Allahabad also in A.I.R 1942 ALL. 35820 held that:

“Where an appellant dies after filing the appeal and by an order passed by the Court one of his heirs is permitted to continue the appeal and is brought upon the record as a representative of the deceased entitled to continue the appeal filed by him, the heir represents the entire inheritance which came into being on the death of the appellant.”

10. In that case also after the death of the appellant, more than one person should have come on the record as the legal representatives of the deceased appellant. But only one person was brought on the record, and even then the learned Judges held that (page 361):

… the appellant died after filing the appeal … and by an order passed by this Court … Mt. Lachho has been permitted to continue the appeal filed by Ram Charan and has been brought upon the record as a representative of Ram Charan, [she must be held] entitled to continue the appeal filed by him. That must be held to be for the benefit of the entire inheritance which came into being on the death of Ram Charan.”

11. We are therefore of opinion that there is considerable authority for holding that even a partial representation of the estate of the deceased appellant is sufficient to validate the appeal and to preclude the decree obtained in that appeal from being regarded as a nullity.

12. Then the next question we have to consider is as regards the applicability of O. 41, R. 4 of the CPC. That rule lays down that:

“Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.”

13. It is contended by Mr. Gajendragadkar that this rule would not have any application to the present case unless there were more appellants than one, and he urged that the real appellant was the deceased plaintiff and that he was only represented by his two sons. We are of opinion that in this case we must hold that the appellants before the Court of first appeal were the two sons, Chintaman and Waman, on whom the right to continue the proceedings devolved after the death of Balwant Sakharam. From that view it would follow that both those appellants having filed a second appeal in the High Court, and one of them having died during the pendency of the appeal, the provisions of O. 41, R. 4, applied and it was competent to this Court to pass a decree in the suit even in respect of the person who was not at that time before the Court. But it was contended by Mr. Gajendragadkar that even so, the question arising out of the death of Chinaman and his heirs not being brought on record, has to be considered under O. 22, R. 3. That rule relates to the abatement of suits and appeals. Under that rule:

“Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-r. (1), the suit shall abate so far as the deceased plaintiff is concerned.”

14. These provisions apply also to appeals; but in the present case no question of abatement arises as admittedly the decree was passed by this Court before the period prescribed for bringing the legal representatives on record expired. We have not been referred to any case where the facts are similar to those before us. But Mr. Gajendragadkar referred to the provisions of O. 22, R. 3, in order to test the argument as to whether in such a case where an appeal abates a decree could be passed under O. 41, R. 4, in favour of the appellant whose appeal has abated. On this point there have been several decisions, and the consensus, of opinion appears to be that even after the appeal has abated it is open to the Court, acting under O. 41, R. 4, to pass a decree in respect of all the appellants including the appellant whose appeal has abated. The question came up for consideration in 22 Bom. 71821. At p. 721 Tyabji J. observes as follows:

“The mere fact of the death of one of the appellants cannot affect the right of the other appellants to proceed with the appeal if they choose to do so. As regards the appellants therefore the proper course for the lower appellate Court was to order that the appeal had abated so far as Harisang Kanubhai was concerned, and to have proceeded with the hearing of the appeal so far as the remaining appellants were concerned.”

15. Somewhat similar question arose in 27 Bom. 28422. In that case, out of the two defendants-appellants, Gangabai and Anpumabai, Gangabai died pending the disposal of the appeal, and her legal representatives were not brought on record. The appeal proceeded at the instance of Anpurnabai only. On hearing the appeal the Judge reversed the decree of the lower Court and dismissed the suit. The plaintiffs, thereupon, preferred a second appeal and it was contended that the appeal by the defendants to the lower Court had abated inasmuch as the representatives of Gangabai had not been made parties, and that, at all events, under the circumstances the lower Court should not have reversed the whole decree, but only so much of it as related to An-pumabai's share. In giving judgment, Chandavarkar J. referred to the earlier decision in 22 Bom. 718 and held that the defence of Anpurnabai was common to her and Gangabai, and the mere fact of her having been joined with Gangabai would not take away her right to appeal (page 286):

“No doubt in the lower appellate Court the appeal that was heard was the appeal of Anpumabai, but, in dealing with that appeal it was open to the lower appellate Court to hear and deal with the whole suit if the defence was common.”

16. So although Chandavarkar J. had before him the ruling in 22 Bom. 718, he went even further and held that the appeal could be decided as if Gangabai was still a party to the suit even though her representatives had not been brought on record and her appeal abated by efflux of time. This decision of this Court has been approved of in several decisions of the various High Courts in India. It has been referred to with approval in A.I.R 1923 Mad. 5823, and in A.I.R 1925 Mad. 91024. In the latter case one of two appellants who were undivided Hindu brothers was dead when the decree was passed in the appeal. Subsequently the deceased's legal representatives applied to be brought on the record. It was held that as the decree passed legally in favour of the surviving appellant must enure for the benefit of all the members of the appellants' family, and as they wished to be formally brought on record as legal representatives of the deceased appellant who was not a party when the appeal was heard, their application to be brought on the record should be allowed. In that case also the fact was that appellant 2 was dead on the date of hearing of the appeal, and it was held that fact could not put his legal representatives in a worse position than if he had not been party to the appeal at all and even assuming that he was not a party to the appeal, the decree which was given in favour of his undivided brother, appellant 1, would enure for the benefit of the other members of the family, namely, those petitioners who later wished to be added as parties. In support of the view taken the learned Judges relied on the Bombay case in 27 Bom. 284. The Bombay decision was again referred to with approval in 61 Cal. 87925. In that case also the appeal to the High Court was filed by the two brothers, Asiruddin and Mobarak. Mobarak died during the pendency of the appeal, and his heirs were not brought on the record within the time allowed by law. The result of that was that the appeal abated automatically so far as the appellant Mobarak was concerned. It was contended that the effect of this abatement of the appeal so far as Mobarak was concerned, was that the whole appeal had abated. The preliminary objection was based on this ground and it was said that the appeal to that Court was incompetent and should have been dismissed apart from any question on the merits. It was further contended that O. 41, R. 4, only provided for a case where the appeal was preferred by one of the defendants, and not for the case where both the defendants appealed, and during the pendency of the appeal one defendant died and his appeal abated. The learned Judges were, however, of opinion that would be putting a limited construction on the provisions of R. 4 of O. 41. In giving judgment in that case, Mitter J. referred with approval to the observations of Sir John Wallis in 40 Mad. 84626 at p. 868 where the Bombay decision has been quoted with approval and authority. Sir John Wallis observes (p. 868):

“Defendants 20 and 22 died after the appeal had been preferred and their representatives have not been brought on the record. It has been argued that as the appeal has abated as regards these appellants the decree of the lower Court cannot be modified as far as their interests are concerned. The grounds of appeal in which the appellants have succeeded are common to all the appellants and we think the terms of O. 41, R. 4 of the CPC, are wide enough to cover this case—27 Bom. 284—and enables this Court to set aside the decree as regards the whole of the plaintiff's claim and not merely in respect of the interest of those appellants whose appeals have not abated. Any other conclusion would lead to ‘incongruity in judicial decisions on the same facts:’ vide, 30 Mad. 47027.”

17. A similar question came up for consideration in 58 Mad. 407. That was, however, a Case not of appellants but of respondents, and O. 41, R. 4, was held not applicable to a case of that kind. But by parity of reasoning the argument was applied to the case before the learned Judge. At p. 414 Varadachariar J. observes as follows:

“As stated already, on the death of the grandfather, his two sons were brought on record, that is, the estate was represented by two persons, as legal representatives. The question for consideration is, when one of them dies and his legal representative is not brought on record, does the original estate that was at first represented by two persons as legal representatives and is later on represented by one of them only cease to be represented, for the purpose of that litigation. If the answer is in the negative, the Court will undoubtedly continue to have jurisdiction to deal with the matter in controversy, whatever other remedies any person may have, on the ground that he was interested in the controversy but was not brought before the Court. Argument has accordingly been directed to this aspect of the matter and a number of cases have been brought to my notice. In dealing with these cases it seems to me … that a difference has to be kept in view between cases in which the original party to the action dies and his legal representative is not brought on record, though there may be others having common interest with him and cases in which only one of several legal representatives brought in as such during the pendency of an action dies and the estate continues to be represented by the remaining legal representatives. Whatever the position may be as regards the first group of cases, I am of opinion that in the second group there is no lack of representation of the estate, that the remaining representatives can as well represent the estate as the original group did and that the principle applicable to this class of cases is to be gathered from those decisions which uphold the doctrine of representation of an estate by some of the heirs of a deceased person when such heirs are sued as defendants in the first instance.”

18. We are of the opinion that these observations of the learned Judge are applicable to the matter which has come before us for consideration, and, with respect, we are in entire agreement with that view of the learned Judge. It has been argued by Mr. Gajendragadkar that this view of the applicability of O. 41, R. 4, makes to some extent nugatory the provisions regarding abatement contained in O. 22, R. 3 and has referred to the decision of the Lahore High Court in 15 Lah. 66728. But, in our opinion, the current of authority is in favour of the more liberal construction which has been placed on the provisions of O. 41, R. 4. If the case is of such a nature that it cannot be disposed of in the absence of the legal representatives of the deceased, the whole appeal will abate. But if the lower Court's decree proceeds on a ground common to the deceased as well as to the survivors, then, the latter can, under O. 41, R. 4, appeal from the whole decree and the absence of the legal representatives of the deceased is no bar to the disposal of the appeal. Hence, in such a case, if the legal representatives are not substituted within the period of limitation, the appeal abates only so far as the deceased is concerned and not as a whole, and if the appeal succeeds, the appellate decree or order enures to the benefit of all the appellants including the deceased. This view is based on the decision of our own High Court in 27 Bom. 284 which has been followed recently by Broomfield J. in 45 Bom. L.R 10929. At p. 114 the learned Judge observes:

“The cases cited by Mr. Dharap, viz., 22 Bom. 718, 27 Bom. 284 and 61 Cal. 879, make it quite plain that the death of one of two joint owners during the pendency of an appeal does not prevent the appeal being prosecuted by the other. In fact there is no rule that all joint owners must be parties to appeals, although it has been held that they must be parties to suits.”

19. With all respect, therefore, to the learned Judges of the Lahore High Court who decided the case in 15 Lah. 667 we prefer to follow the view of our own High Court as embodied in 27 Bom. 284 and which has been approved of by several other High Courts in India. If then the position is that even after the abatement of the appeal of a particular appellant, the success of the other surviving appellants enures for the benefit of the deceased appellants, the case becomes all the more strong when, as in the case before us, the appeal had not even abated at the time when the appeal was decided by Sen J. It is, however, contended by Mr. Gajendragadkar that before the provisions of O. 41, R. 4, can be invoked, there must be consciousness on the part of the Court that one appellant is dead, and it is only after the Court comes to have knowledge of this fact that the power under that rule can be exercised and the order enures for the benefit of the deceased appellant. But from the case in 27 Bom. 284 as also from the case in A.I.R 1925 Mad. 910, it is clear that the learned Judges who allowed the appeal were not aware of the death of one of the appellants, and even so it was held that the successful appeal would enure for the benefit of the deceased appellant. It was lastly contended by Mr. Gajendragadkar that at least in respect of the one-half share of Chintaman the decree should be held as a nullity.

20. In our opinion, this contention cannot be sustained. It may be that a person interested in so contending may file a suit for a declaration that he was not bound by the decree of the Court. But it cannot be held that the Court which passed the decree had no jurisdiction to do so; and it would not be open to the executing Court to go into this question. For these reasons we are of opinion that the view taken by the two lower Courts is correct and the appeal, therefore, must be dismissed with costs.

21. Appeal dismissed.