R.N. Misra, J.
1. The defendants are in appeal against the affirming decision of the learned Subordinate Judge Bolangir. The plaintiffs sued for title and possession on the footing that the defendants, a set of trespassers came upon the property and forcibly interfered with the possession of the plaintiffs. The suit was decreed on 2-4-1962. The defendants thereupon appealed. The title appeal was allowed on 29-3-1963. The plaintiffs came to this Court in Second Appeal 264 of 1963 which was remanded to the lower appellate Court for fresh disposal in accordance with law by decision dated 8-5-1964. After the matter went back on remand it was contended in the lower appellate Court that the 6th defendant had died in 1965 and in view of the nature of the claim, in the absence of substitution not only the appeal abated against defendant No. 6 but it affected the entire appeal by abatement. Before the lower appellate Court the defendants contended that the death of defendant No. 6 had taken place during the pendency of the second appeal before this Court. That was negatived. The lower appellate Court accepted the contention of the plaintiffs that the entire appeal abated. It is against that determination that the present appeal has been carried to this Court by the defendants.
2. Two contentions have been raised on behalf of the appellants. It is stated that defendant No. 6 was a pro forma defendant and abatement against him would not affect the appeal. What really is claimed is the benefit under proviso to Order 22, Rule 4 of the Code of Civil Procedure. It has already been indicated by this Court in the case of Lakshmi Charan Panda v. Satyabadi Behera, AIR 1964 Orissa 39, that an application for waiving substitution can be made only before abatement sets in that is, in case the application is made within ninety days from the date of death. In this case there was no such application and as such the benefit of that provision is not available.
3. The next contention is that the entire appeal does not abate if the appeal, is taken to have abated against defendant No. 6. There is no dispute that the defendants were sued on the footing of being joint tort-feasors. Law is settled as far as this Court is concerned that in such a case non-substitution of the joint tort-feasors who upon death has left behind legal representatives would lead to inevitable dismissal of the entire litigation as it would cease to be competent. The latest decision of this Court on the point is in the case of Kanungo Khagendranath Das Mohapatra v. Jadaben-dra Narayan Patnaik, (1972) 38 Cut LT 129 = (A1R 1972 Orissa 161). In that view of the matter, I would hold that the learned appellate judge was right when he said that the entire appeal before him had abated. The second appeal fails and is dismissed. Since the dismissal has been on a technical ground, I would call upon both parties to bear their own costs.