Ram Labhaya, J.:— This appeal arises out of a suit for declaration. The case for the plaintiff was that some land, which had been acquired by the Government, belonged to him and was in his possession. The compensation for this land amounting to Rs. 874-8-0 was held to be payable to defendants 1 to 7. On the date of the suit, the amount was still lying in Court. He, therefore, prayed for a declaration that he was entitled to the amount of compensation for the land in question. The suit was resisted by the defendants. The Sadar Munsif, Gauhati, decreed the claim. On appeal, the amount declared due to the plaintiff by the decree of the trial Court, was reduced. Defendants 1 to 7 have appealed to this Court.
2. During the pendency of the appeal in this Court, Chandinath Deb one of the appellants died.
3. His legal representatives were not brought on the record within the time allowed by law. The appeal, therefore, automatically abated so far as the deceased was concerned. It is now contended by the learned counsel for the respondents that the appeal should be taken to have abated as a whole, as in the absence of legal representatives of the deceased appellant, the appeal is imperfectly constituted.
4. It is clear from the plaint that the cause of action against the defendants was joint and indivi-ible. A declaration against all 7 defendants was prayed for. Till the date of the institution of the suit, defendants had not received, jointly or individually, any money from the Court. A joint declaration against all the defendants that the plaintiff was entitled to the whole of the amount claimed by them in acquisition proceedings was enough. Defendants resisted the suit on the same basis. The decree that was passed was joint and indivisible even though during the pendency of the suit the amount in question had been paid to the defendants. The decree passed by the lower appellate Court was also joint and indivisible. The modification was only in respect of the amount. Separate interest or the separate liability of different defendants was not indicated. The extent of their separate liability was never ascertained. It was not necessary for granting appellant the declaration sought for. It is not ascertainable now in the absence of any material on the record. Where a decree is joint and indivisible as in this case, one of the appellants dies and his legal representatives are not impleaded, the abatement will not be limited to the deceased appellant alone. The appeal would abate in its entirety as, on account of the absence of necessary parties, appellants against whom a joint decree was passed, cannot get any relief. Rule 3 of O. 22 of the CPC, applies to appeals. By virtue of this rule, if one of two or more appellants dies and the right to sue does not survive to the surviving appellants or appellants alone and no application is made for substitution of legal representatives, the appeal abates so far as the deceased appellant is concerned. In this case, one of the appellants died. The right to sue did not survive to the surviving appellant. It was necessary, therefore, to implead the representatives of the deceased appellant. They have admittedly not been brought on the record. The consequence is that the appeal has abated against him. The decree being joint and indivisible, the appeal is imperfectly constituted in the absence of the legal representatives of the deceased appellant who are necessary parties to the appeal. The surviving appellants alone cannot urge that the decree be set aside so far as they are concerned, or to the extent of their shares in the money in dispute. Their share is un-ascertained and is un-ascertainable. Reside, if such a contention were to succeed, there will be two conflicting decrees. In these circumstances, the abatement of the appeal would be entire and not parital.
5. This view of the law finds ample support from authority, vide: Chunilal Tulsi Ram v. Aminchand, A.I.R (20) 1938 Lah. 356 (2) : (14 Lah. 543), Pir Bakhsh v. Kedar Nath, A.I.R (22) 1935 Lah. 478 : (155 I.C 610), Rameshwar Singh v. Ramcharan, A.I.R (19) 1932 Pat. 327 : (11 Pat. 538), Ghulam Mohd. Syed Khan v. Sherdil Khan, A.I.R (29) 1942 Sind 157 : (ILR 1942 KAR 435). In fact there is a general consensus of authority on the point that where a necessary party is not before the Court by reason of abatement, the suit or appeal as the case may be shall abate as a whole. The learned counsel for the appellants has not seriously questioned the correctness of this view. He has, however, tried to get over the difficulty by raising another contention. He argues that the decree against the appellants proceeds on a basis common to all and should be set aside under O. 41, R. 4 of the CPC. The death of one the deceased appellant does not prevent the Court from taking action under O. 41, R. 4. The decree can be set aside in its entirety. There will be no question of conflicting decrees nor will it be necessary to ascertain, the shares of different appellants.
6. There is considerable divergence of judicial authority on this point. We have given the question our careful consideration. We do not think that O. 22, R. 3 is qualified by O. 41, R. 4. Rule 3 of O. 22 provides that in the case of a death of a plaintiff or appellant, the suit or appeal shall abate if his legal representatives are not brought on the record and the right does not survive to the surviving plaintiffs or appellants. The effect of abatement is that the suit or appeal so far as the deceased is concerned stands dismissed. The other Bide thereby secures a valuable right. In these circumstances, if acting under O. 41, R. 4 the Court sets aside the decree even against a deceased appellant, it is for all practical purposes, setting aside a decree which has become final by reason of the abatement of the appeal so far as the deceased appellant is concerned. This does not seem to have been contemplated by O. 41, R. 4. The language of O. 41, R. 4 suggests that it can apply where plaintiffs or defendants are alive at the time when the decree of the appellate Court is passed. There is nothing in it which would support the view that the Court acting under this provision could set aside a decree which became final by abatement after it was passed. In such case, the Court would be granting relief to representatives who are not before it or to a dead person. It will also be depriving the other party of a right, which it has secured during the pendency of the appeal by reason of abatement, which undoubtedly would take place if legal representatives are not substituted. In fact, one may go further and state that O. 41, R. 4 applies to a properly constituted appeal. Where necessary parties are not impleaded or where by reason of the failure to bring legal representatives of a deceased appellant or respondent, the appeal has become imperfectly constituted, O. 41, R. 4 cannot apply. The case law on the point was fully reviewed in the Full Bench case reported in Ram Phal Sahu v. Satdeo Jha, A.I.R (27) 1940 Pat. 346 : (19 Pat. 870). It was held by the learned Judges constituting the Full Bench that by reason of provisions of Rr. 3 and 11 of O. 22, the appeal in so far as it concerns the deceased appellant abates and if the abatement is not set aside in course of time, the matter becomes final as against the deceased appellant. There is nothing in O. 41, R. 4 which permits the Court to disturb the finality of the decree as against the deceased appellant. The same view was taken by a Division Bench of the Sind Chief Court. Vide Ghulam Mohd. Syed Khan v. Sherdil Khan, A.I.R (29) 1942 Sind. 157 : (ILR 1942 KAR 435). We are in respectful agreement with the view expressed in these cases and, following these authorities, hold that an appellate Court has no power to proceed with the hearing of an appeal and to reverse or vary the decree in favour of the plaintiffs or defendants under O. 41, R. 4, if all the plaintiffs or defendants appeal from the decree, and one of them dies and no substitution is effected within time. Order 41, R. 4 does not qualify or override O. 22, R. 3. A joint decree against all the defendants, therefore, cannot be set aside at the instance of appellants who are alive, under O. 41, R. 4.
7. In the view of the law that we take, this appeal abates in its entirety and is, therefore, dismissed. We shall leave the parties, to bear their own costa in this Court.
Thadani, J.:— I agree.
8. Appeal dismissed.