SATULAL BHATTACHARJEE Vs. ASIRUDDI SHEIKH

JUDGEMENT

(1.) This is an appeal Under Section 15, Letters Patent, from a judgment of my learned brother Patterson, J., who modified the decree of the lower appellate Court and restored the decree of the Munsif. Two points have been raised before us in respect of the appeal which has been preferred on behalf of the plaintiffs. It is first contended that by reason of certain events which happened, the appeal before Patterson, J., should have been dismissed on the preliminary ground that as one of the defendant-appellants had died during the pendency of the appeal in this Court and his heirs were not brought on the record, and the appeal having abated so far as the said defendant was concerned, the whole appeal had abated. This contention did not prevail with Patterson, J., and he held that this preliminary objection must be overruled, and we are of opinion that the learned Judge was right in his conclusion on this part of the case for reasons to be detailed presently.

(2.) The suit out of which this appeal arose was brought by the plaintiffs, now appellants before us, for a declaration of their title to certain lands and for recovery of khas possession in respect of the same. The first Court granted a declaration of the plaintiffs title to a fractional share in the lands in suit but dismissed the plaintiffs suit for khas possession. On appeal to the lower appellate Court it set aside that decision and decreed the plaintiffs suit in full.

(3.) It appears that defendant 1, Fedu Sheikh, died during the pendency of the appeal in the lower appellate Court and his two sons Asiruddi Sheikh and Mo-barak Sheikh were substituted as his heirs in the record of the appeal in the-Court below. The appeal to this Court was filed on behalf of both Asiruddi and. Mobarak. Mobarak died during the pendency of the appeal to this Court 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 is stated that the effect of this abatement of the appeal, so far as Mobarak was concerned, is that the whole appeal had abated. The preliminary objection is based on this ground, and it is said that the appeal to this Court was incompetent and should have been dismissed apart from any question on the merits. Patterson, J., has negatived this objection and has relied on the provisions of Order 41, Rule 4, Civil P. C. We are of opinion that this case is governed by the provisions of Order 41, Rule 4 which runs as follows: 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 therefore the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.