Sir John Edge, C.J and Banerji, J.:— The plaintiff, appellant here, obtained a decree against a Muhammadan. From that decree the Muhammadan appealed, and after his appeal had been admitted on the register he died. The Muhammadan left three heirs. One only of those heirs was brought on the record as representative of the deceased appellant. The plaintiff respondent in the Court below, opposed the bringing on of one only of the heirs. The learned District Judge applied s. 544 of the Code of Civil Procedure. His view was that the original sole defendant having died, there were three separate defendants, his representatives, in existence, and that one of them might carry on the appeal. The Judge overlooked the fact that the three representatives were not on the record and could in no sense have been considered as three separate defendants. He also overlooked the fact that where a defendant dies after decree and leaves, say, three legal representatives, each of these representatives [212] is not entitled to bring a separate appeal against the decree. In such a case there could be only one appeal. Section 544 has no application to a case like this. The defendant, appellant in the Court below, having died, the appeal could only be carried on if such person or persons as represented the interests of the deceased appellant were on the record. This lady, who was brought on adversely to the plaintiff, being a Muhammadan, did not represent the interest of the deceased Mubammadan defendant, although she may have represented her own interest as one of the heirs. In s. 365 the words “the legal representative” must, where there are more than one legal representative, be read in the plural. It might be that one only of the legal representatives of a deceased appellant was willing to carry on the appeal. In that case that legal representative should make the other legal representatives parties to the appeal as respondents, if they refused to join as appellants, so that the Court might have before it all the persons whose interests might be affected by the decree in appeal. The legal representatives of the deceased appellant not having been brought upon the record in the Court below within time, or at all, the appeal below abated, and an order to that effect should have been made. We allow this appeal with costs and setting aside the decree of the Court below with costs, we decree that the appeal below abated and that the decree of the first Court stood.
Appeal decreed.