Shiv Dayal, J.
1. Gaurishankar instituted a suit against Ochhkai defendant No. 1, Vijaysingh, defendant No. 2, Shivrajsingh, defendant No. 3, Bhagwant-singh defendant No. 4, and Ajabsingh defendant No. 5 for declaration of title to a Khander and for possession. The Civil Judge passed a decree in favour of the plaintiff. Ochhkai, Shivrajsingh, Bhag-wantsingh and Ajabsingh preferred an appeal against Gaurishankar. Vijay singh was made a respondent.
2. During the pendency of the appeal, Ochhkai died on May 23, 1956. An application was made under Order 22, Rule 2 of the Code of Civil Procedure by Shivrajsingh, Bhagwantsineh and Ajabsingh, stating the fact of the death of their father, Ochhkai, and informing that they were his legal representatives and were already on the record. Gaurishankar raised on objection that since the deceased had left a surviving widow and a daughter the appeal could not proceed in their absence. Theywere necessary parties and since the prescribed time had expired the appeal had abated, the Additional District Judge upheld the objection and dismissed the appeal on January 24, 1957. The second appeal (No. 59 of 1957J has been filed by Shivraj Singh and his two brothers.
3. It is argued by Shri Gupta appearing on behalf of the three brothers that Ochhkai having died before coming into force of the Hindu Succession Act, 1956, the daughter and the widow had no interest in the property and the three sons of Ochhkai fully represented him. It is also urged that it the widow and the daughter did not choose to continue the appeal, the surviving appellants could not be deprived of their right of appeal.
4. In my opinion, there is no substance in this contention. Under the Hindu Women's Rights to Property Act, 1937, which became applicable to the relevant territories, by the Madhya Bharat Adoption of Laws Act No. 1 of 1953, from January 24, 1953, the widow represents the deceased. Her sons could not represent her particular interest which vested in her on her husband's death. As such there can be no doubt that Mahila Bataso was a necessary party to the appeal.
The fact that she did not want to assert any interest which she got under the law is without consequence inasmuch as by her mere silence she could not divest herself or surrender her rights in favour of her sons. And if she did not choose to apply to the Court for being substituted in place of Ochhkai, it was for the surviving appellants to make an application for bringing her on the record as a respondent.
5. It is then contended by Shri Gupta that having regard to the common defence which was taken by Ochhkai and his sons, it was open to the latter to have filed an appeal against the decree of the first court. Reliance is placed on Rule 4, of Order 41 of the Code. It is true these appellants could have filed an appeal independently of Ochhkai but once they joined hands with him in preferring the appeal, Order 41, Rule 4 of the Code ceased to apply. They cannot now claim an exemption from the operation of the provisions contained in Order 22 of the Code.
This has been held in Lilawati Bai v. Gangadhar, AIR 1953 Nag 12. I am aware of decisions of some other High Courts where a contrary view has been taken and it has been held that where an appeal proceeds on grounds common to all the appellants so that any one of them could have prosecuted the appeal without the others, an abatement with respects to one of them will not cause the appeal to fail. Those cases are noted in Chitaley's Code of Civil Procedure (See Note No. 23 to Order 22, Rule 3).
It is unnecessary to discuss them in view of the binding precedent before me. The learned counsel endeavours to take help from the decision in Ganeshmull v. Sohanlal, AIR 1956 Nag 111, but, in my opinion, that is an authority applicable to cases where the liability is joint and several and one of the promissors dies and the appeal abates against him because in such a case the decree remains executable against the surviving promissors independently of the deceased.
6. For these reasons I see no error in the conclusion which the Additional District Judge reached when he held that the appeal, so tar as Ochhkai was concerned, abated on August 23, 1956 on the expiration of 90 days after his death.
7. Now the question is whether the appeal abated in toto or only partially. The answer to this question always depends upon the nature of the suit and the decree under appeal. In the present case the decree which was passed by the trial Judge was an indivisible one. The appeal was, therefore, rightly held to have been abated in its entirety. The second appeal No. 59 of 1957 must, therefore, be dismissed.
8. After the Additional District Judge dismissed the appeal on January 24, 1957, Mahila Bataso and the surviving appellants made a joint application under Order 22, Rule 9 of the Code of Civil Procedure for setting aside the abatement and also prayed for condonation of delay under Section 5 of Limitation Act. That application has been allowed by the Additional District Judge by his order dated October 15, 1959.
The plaintiff has come up to this Court in revision (Civil Revision No. 201 of 1959). In that application Mahila Bataso made a statement that she had no interest in the property nor was she in possession thereof. The object of such a statement is patent enough; it was aimed at protecting the interests of her sons. Such a statement could not avail Shivrajsineh and his brothers. However, in the alternative, she prayed to be made a party alter setting aside the abatement.
The only question in that regard is whether benefit of Section 5 of the Limitation Act could be given. While dismissing the appeal before him, it was observed by the Additional District Judge that both the learned Counsel appearing for the parties were not aware of the Madhya Bharat Adoption of Laws Act No. 1 of 1953. Moreover, on the question whether in a case of this nature if, the appeal abated in toto or partially, there are conflicting decisions of High Courts.
While setting aside abatement, costs Rs. 25/-bave been awarded to the plaintiff. In my opinion it cannot be said that the discretion exercised by the appellate Court in excusing the delay is a material irregularity or is illegal. To me this appears to be a fit case where substantial justice should not be denied because of a technical question of somewhat complicated nature. Therefore, the order dated October 15, 1959 must also be upheld.
9. The result is that the appeal of Shivrajsingh and others is dismissed with costs. The revision filed by Gaurishankar is also dismissed. Parties to bear their own costs in the revision.