1. In this appeal a preliminary objection is taken by the respondents. The suit was brought by three parsons (1) Ram Narain Pande (2) Nepal Misra and (3) Sheo Prasad Misra. They obtained a joint decree for possession of certain property and damages. After the appeal was filed, Ram Narain Pande died, Steps for substitution of the names, of his legal representative were not taken for more than three months after his death, when the appellants application was rejects ed and it was ordered that the appeal should abate at least as against Ram Narain Pande. An application to have this order set aside was also rejected. The preliminary objection is that, as the decree for joint possession is in favour of three persons, who are not members of a joint Hindu family, this appeal cannot lie against two of them only. In support of this contention, reliance is placed on a ruling of the Calcutta High Court in Arjan Mirdha v. Kali Kumar Chakerbutty 68 Ind. Cas. 194. In the judgment in that case reference is made to a-ruling of the same Court in Kali Dayal Bhattacharjee v. Nagendra Nath Pakrashi 54 Ind. Cas. 822 : 24 C.W.N. 44 : 30 C.L.J. 217, where the matter has been discussed in an elaborate judgment reviewing the authorities. It was held in the case that, where a joint decree had been obtained and the appellants had failed to bring on the record the representatives of one of the joint decree-holders, who had died, that, though under Order XXII Rule 4, C.P.C., the appeal abated as against the heirs of the deceased plaintiff only, the result of such abatement was that the appeal was imperfectly constituted and that in the absence of a necessary party the Court would not proceed to decide the appeal on the merits. A number of earlier decisions of the Calcutta High Court to the same effect were referred to, in all of which the view taken was that, in such circumstances, the appeal could not be heard, because in the event of its being allowed on the merits the result would be that the decree would be set aside in respect of some of the plaintiffs but would remain intact in so far as the representatives of the deceased plaintiff were concerned, and there would be two contradictory decrees made in the same litigation.
2. The learned Advocate for the appellants refers to a compromise, which was entered into between the plaintiffs to the present suit at some time before the suit was instituted. He maintains that this compromise defined the shares of the plaintiffs in this property and that it would, therefore, be possible for this Court, in the event of the appeal succeeding, to distinguish the shares of the surviving plaintiffs, It does not appear, however, that under this compromise any partition was perfected or that the parties to it ever took action under it. The decree obtained by them is a joint decree without any specification of shares. In my opinion, the view taken by the learned Judges of the Calcutta High Court is the correct one; and, though the appeal has abated as against the deceased plaintiff only, it cannot now be heard on the merits.
3. The preliminary objection accordingly succeeds, and the appeal is dismissed with costs including in this Court costs on higher scale.