Kan Singh, J.
1. The second appeal before me was lodged by four appellants Nathu, Ramdeo, Gokul and Hira on 5-4-1971. It was admitted on 29-7-1971. During the pendency of the appeal Nathu one of the appellants, expired and learned counsel for the respondent moved an application for holding that the entire appeal has abated, as the appellant Nathu was survived by two female heirs who had not been brought on record within the period of limitation. Learned counsel maintains that as Nathu was one of the appellants and the decree against all the appellants proceeded on a ground common to all, the appeal abates in its entirety.
2. Learned counsel for the appellants contested this position. It was, however, admitted by him that Nathu had expired in February, 1972 and he had left behind two female heirs who were not brought on record within the period of limitation. Learned counsel, however, submits that according to the latest pronouncements of their Lordships of the Supreme Court in Ratanlal v. Firm Lalman Das, AIR 1970 SC 108 and Mahabir Prasad v. Jage Ram, AIR 1971 SC 742 the last mentioned case being followed by this Court in Hanuman v. Shagru, AIR 1972 Raj 176 the appeal cannot be said to have abated and could be prosecuted by the surviving appellants even for the benefit of the legal representatives of the deceased Nathu. Learned counsel also placed reliance on Misri Lal v. Mt. Surji, AIR 1950 PC 28.
3. Learned counsel for the respondents on the other hand, invited attention to Padma Ram v. Surja, ILR (1960) 10 Raj 573 = (AIR 1961 Raj 72); Jawari Mal v. Mangi Lal, ILR (1961) 11 Raj 793; Rameshwar Prasad v. Shambehari Lal, AIR 1963 SC 1901 and Sri Chand v. Jagdish Pershad, AIR 1966 SC 1427.
4. The relevant facts may briefly be recounted for dealing with this controversy. The plaintiff Laxmi Narain brought a suit for declaration, possession and for mesne profits in respect of a house described in para. 1 of the plaint. It was averred that it initially belonged to one, Ramgopal who had died about 10 years before the filing of the suit and after his death one Pyar Chand who was the sole surviving coparcener with deceased Ramgopal being his adopted son entered into an agreement of sale on 19-7-1958 with defendant No. 1 Chhoga for a consideration of Rs. 3,000/-. A part of the consideration was paid and the balance was to be taken by the vendor at the time of the execution of the said deed. However, as Pyar Chand did not execute the sale deed in favour of Chhoga as agreed to by him. Chhoga had filed a suit for specific performance of the contract in the Court of the Civil Judge, Aimer (Civil Suit No. 37 of 1958). This suit was decreed in favour of Chhoga on 30-7-1959. Subsequent to this decree Chhoga had transferred it for a valuable consideration in favour of the plaintiff Laxmi Narain. Laxmi Narain was then substituted in place of Chhoga and the learned Civil Judge executed a sale deed on behalf of Pyar Chand in favour of Laxmi Narain. Laxmi Narain, however, found that in the meantime defendants Baldeo. Nathu and Ramdeo had wrongfully occupied this property. He further averred that these defendants purported to purchase this property from one Smt. Sugni, Smt. Bhagwati and Ganga Bishan under a sale deed dated 29-10-1960, but that sale deed, according to the plaintiff, was of no effect. The plaintiff, therefore, prayed for a declaration that the property be declared to be his and the defendants Baldeo, Nathu and Ramdeo be dispossessed from the suit property. Mesne profits were also claimed.
5. The learned Civil Judge decreed the suit holding that the plaintiff was the owner of the property and the defendants Nos. 2 to 4 were not entitled to remain in its possession. Mesne profits were also awarded.
6. Aggrieved by the decree. Nathu, Ramdeo and the legal representatives of Baldeo went up in appeal to the Court of the learned District Judge, Aimer, Baldeo having expired during the pendency of the suit. The learned District Judge affirmed the decree of the learned Civil Judge.
7. It will be thus seen that the decree against the appellants proceeded on a ground common to all the appellants. The application thus raises a question about the applicability of the provisions of Order 41, Rule 4 as well as Order 22. Rules 3 and 4 and Order 22, Rule 9, Civil Procedure Code to the facts and circumstances of the case. The question about the applicability of these provisions had led to cleavage of judicial opinion in the past. The matter came to be considered in this Court by Modi. J. in ILR (1960) 10 Raj 573 = (AIR 1961 Raj 72). He made a review of a number of decided cases of the various High Courts. He further considered the relevant statutory provisions and then after elaborately discussing them all summarised his conclusions in the following words:--
'Summing up the position at which I have arrived from the discussion made above, I would say that the two sets of provisions contained in Order XXII, and Order XLI, Rule 4, Civil P. C., having regard to the objects behind the rules relating to abatement of suits and appeals and the necessity for setting them aside and the rules contained in Order XXII, being mandatory in character and again having regard to the consideration that the rule contained in Order XLI, Rule 4, is an enabling general provision empowering the appellate Court in its discretion to vary or reverse a decree under appeal which was based on grounds common to all the plaintiffs or all the defendants and wherein all of them may not have appealed should be interpreted in such a way that they receive their due effect and force within their respective ambit without the one impinging upon the other, and the proper method to do so is to hold that where one of the appellants has died even where the judgment under appeal is founded on aground common to all the appellants, the application of Order XXII cannot be brushed aside in subordination, as it were, to the provision contained in Rule 4, and that the latter provision would not be attracted into application in such a case as it should really be limited to those cases where all the appellants are alive at the date of the decision by the appellate Court and not where one or more of them have died and their legal representatives have not been brought on record in accordance with the requirements of Order XXII. I hold accordingly.'
Furtheron he added that the upshot of the entire discussion made above is that the appellants cannot legitimately be allowed to take advantage of Order XLI, Rule 4, Civil P. C. in the controversy which has arisen around the question whether this appeal had only abated as respects the deceased defendant Padma-ram or it abated as a whole. Now learned counsel for the appellants in that case had not questioned the abatement of the appeal so far as Padmaram was concerned.
8. Order 41. Rule 33, Civil P. C. was also pressed into service by learned counsel in that case and Modi, J. made the following observations in the penultimate para of his judgment:
'Before concluding this judgment, I may briefly refer to the controversy which arose in this Court at the last stage as to the applicability of Rule 33 of Order XLI in this case. I may mention at once that this ground was not raised by learned counsel in his application for setting aside the abatement or even in his opening address. In these circumstances, the point may be disposed of very briefly. Order XLI, Rule 33, Civil P. C. is a very special provision and can be exercised under exceptional circumstances only and not as a matter of course. Again, broadly speaking, it should not be exercised in cases where a party has been guilty of negligence and an important and valuable right thereby has accrued in favour of the other party. I may also add that no special circumstances have been shown to me why the very extraordinary power embodied in this rule should be exercised in favour of the appellants. Reference may be made in this connection to Ghokalingam Chetty v. Seethai Ache, AIR 1927 PC 252 and Ramdhari Singh v. Rambharosa Singh, AIR 1955 Pat 237. No case has, therefore, been made out for giving the appellants, the benefit of Order XLI, Rule 33, Civil P. C., and I consider it enough to say that I should leave the matter at that.'
9. In ILR (1961) 11 Raj 793, Jawari Mal v. Mangilal, Modi, J. reiterated what he had said in the earlier case. Their Lordships of, the Supreme Court had occasion to examine this question in AIR 1963 SC 1901. Their Lordships made the following observations regarding the principle underlying the provisions of Order 41, Rule 4:
'The principle behind the provisions of Rule 4, of Order 41, Civil P. C., seems to be that any one of the plaintiffs or defendants, in filing an appeal as contemplated by the rule, represents all the other non-appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Where a number of persons have filed an appeal and pending the appeal one of the appellants dies, the surviving appellants cannot be said to have filed the appeal as representing the deceased appellant.'
Then as regards the respective domains of Order 41, Rule 4 and Order 22. Rule 9, their Lordships observed as follows:--
'The provisions of Order 41, Rule 4 do not override the provisions of Order 22, Rule 9. Civil P. C. Such a question cannot arise. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of Order 41, applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the appellants the provisions of Order 41. Rule 4 become unavailable. Order 22 operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of Rule 9 of Order 22 and those of Rule 4 of Order 41, Civil P. C. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.'
Their Lordships pointed out that where one of the several appellants dies and the appeal abates as against him under Order 22. Rule 3, the Court has no power to proceed under Order 41, Rule 4, Civil Procedure Code. The contrary opinion held in the Bombay, Calcutta and the Madras High Courts in Shripad Balvant v. Nagu Kushaba, AIR 1943 Bom 301; Satulal v. Asiraddi, AIR 1934 Cal 703 and Somasundaram v. Vaithilinga, AIR 1918 Mad 794 (2) was overruled. Their Lordships also adverted to Order 41, Rule 33 and observed that the discretionary power under this rule cannot be exercised to nullify the effect of abatement of appeal. In this case their Lordships approved the view prevalent in the majority of the High Courts namely, Rampal Sahu v. Satdeo Jha, AIR 1940 Pat 346; Aminchand v. Baldeo Sahai, AIR 1934 Lah 206; Baijnath v. Ram Bharose, AIR 1953 All 565 (FB): Nanak v. Ahmad Ali, AIR 1946 Lah 399 (FB): Pyarelal v. Modi Sikharchand, AIR 1957 Madh Pra 89; Venkata Ram Rao v. Narayana, AIR 1963 Andh Pra 168 (FB) and Sonahar Ali v. Mukbul Ali, AIR 1956 Assam 164. The position was reiterated in AIR 1966 SC 1427.
10. Now I may refer to the two Supreme Court cases cited by learned counsel for the appellant with a view to seeing whether they laid down a different rule.
11. In AIR 1970 SC 108 the suit was filed against the partnership firm through its partners Mohan Singh and Ratan Lal for the recovery of the value of the goods supplied by the plaintiffs to the firm. Ratanlal denied his liability. Mohan Singh, however, admitted that the goods were supplied by the plaintiffs to the firm but pleaded that he was liable only for 1/5th of the amount claimed by the plaintiff. The trial Court decreed the plaintiffs claim in its entirety both against Mohan Singh and Ratan Lal as also against the defendants' firm. Ratanlal alone appealed to the High Court, but he denied the liability for the plaintiffs' claim in its entirety. Mohan Singh was impleaded as second respondent, but the notice of appeal was not served on him. It was argued that the appeal should be dismissed as Mohan Singh was not served with the notice of appeal and the decree be not interfered with. The appeals were held maintainable in spite of the absence of Mohan Singh. It was in this context that their Lordships had to consider the applicability of Order 41, Rule 4. Their Lordships held that the object of Order 41, Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others and the Court could in such an appeal reverse and vary the decree in favour of all the parties who are in the same interest as the appellant. The judgment in the case was delivered by Shah. J., as he then was.
12. In AIR 1966 SC 1427 it is noteworthy that the judgment was again delivered by Shah, J., as he then was. I find it difficult to accept the position that his Lordship would not be having his earlier pronouncement in view while deciding the latter case viz., AIR 1970 SC 108, It is to my mind, evident that his Lordship thought that Order 41, Rule 4 and Order 22, Rules 3, 4 and 9 operate at different stages. Where all the persons against whom a decree has been passed are the appellants then in such a case Order 41, Rule 4, Civil Procedure Code cannot be resorted to and, if one of the appellants has died and his legal representatives have not been brought on record within the period of limitation. Order 22, Rule 9 will have its effect and the consequences that the whole pf the appeal would abate cannot be avoided, if the decree proceeds on a ground common to all the appellants.
13. In AIR 1971 SC 742 the judgment was again delivered by Shah, C. J. in this case there was a suit for arrears of rent against the defendants who were tenants. The Subordinate Judge, Delhi decreed the suit. The decree was then put in execution. The execution of the decree was resisted by the defendants on the plea that the same was inexecutable, because of certain statutory provisions. The learned Subordinate Judge upheld the contention of the defendants and dismissed the application for execution. Of the several plaintiffs only one namely Mahabir Prasad, appealed against that order and impleaded Gunwanti Devi and Saroi Devi as party respondents. Saroj Devi died in November, 1962 and Mahabir Prasad appellant applied that the name of Saroi Devi be struck off from the array of respondents. The High Court, in which the appeal was filed, granted the application for striking out the name of Saroi Devi subject to all just exceptions. Eventually the High Court dismissed the appeal holding that as the legal representatives of Saroi Devi were not brought on record within the period of limitation the appeal abated in its entirety. Against the order of the High Court the appeal was taken to the Supreme Court. It was in this context that their Lordships again considered the scope of Order 41, Rule 4 vis-a-vis the provisions of Order 22, Rule 4 and other relevant rules. Their Lordships observed:
'Jurisdiction of appellate Court under Order 41. Rule 4. Civil P. C. is open when other persons who were parties to the proceeding before Subordinate Court and against whom, a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to appeal or are impleaded as respondents.'
Rameshwar Prasad's case, AIR 1963 SC 1901 was cited before their Lordships on behalf of the respondents in the case, but their Lordships distinguished that case observing that in that case all the plaintiffs whose suit had been dismissed had filed an appeal and thereafter one of them died and his heirs were not brought on record. For the case in hand their Lordships pointed out that all the decree-holders did not appeal in that case, but only one of them appealed and the other two were joined as party respondents. Therefore, in my humble view, where it is a case of all the persons against whom the decree was awarded filed a joint appeal and one of them expired without his legal representatives being brought on record within the period of limitation the fate of the case would fall to be determined in the light of what their Lordships had laid down in AIR 1963 SC 1901 and AIR 1966 SC 1427 but where only some of such persons do not file the appeal and are either impleaded as respondents or not impleaded at all then provisions of Order 41, Rule 4 could be resorted to and the case would be governed by what their Lordships had laid down in AIR 1970 SC 108: AIR 1971 SC 742.
14. In AIR 1972 Raj 176 Jagat Narayan. C. J. followed Mahabir Prasad's case, AIR 1971 SC 742. That was a case where the appeal was filed by one co-owner only against the dismissal of the suit for injunction filed by all the co-owners. The learned Chief Justice, in the circumstances, held that such an appeal was competent in view of the provisions of Order 41, Rule 4, Civil Procedure Code though the other co-owners were not impleaded even as respondents.
15. In an unreported decision of mine Brijlal v. Rajmal Golcha Ltd. First Appeal No. 74 of 1966 (Raj). I had occasion to deal with this Question and had held that where the appeal was filed by the several persons against whom there was a common decree and one of them had died and his legal representatives were not brought on record within the period of limitation, the whole appeal would abate. I must confess that I was considerably impressed by the argument of learned counsel for the appellant that the principle of avoiding two conflicting decrees would nevertheless be violated if, instead of being an appellant, a deceased is a respondent when the decree proceeds on the ground common to the appellants and such deceased respondent. But when there are clear cut cases of the Supreme Court the safe rule to go by is that if a particular situation falls within a particular set of cases or cases decided by their Lordships one should follow such cases and, if a particular situation falls to be considered on the basis of the other set of cases, then one should follow such other cases.
16. Learned counsel finally submitted that the legal representatives of Nathu and the surviving appellants constitute a joint family and, therefore, the appellants could represent the legal representatives of Nathu as well in this appeal. There is one thing that militates against this contention and it is that after the Hindu Succession Act, 1956 the position of the heirs of a deceased coparcener would be that of tenants in common, more so when one is concerned with female heirs.
17. In view of what I have said above. I am of the opinion that the appeal has abated in its entirety and accordingly I dismiss the appeal.
18. Learned counsel orally prayed for grant of leave under Section 18 of the Rajasthan High Court Ordinance. In view of the importance of the point involved and also in view of the pendency of the appeal against my order in S. B. Civil First Appeal No. 74 of 1966. I grant the leave to appeal in this case.