1. Besides the decree that the plaintiff should recover the suit' property from the purchaser, there was a common decree for costs in Original Suit No. 430 of 1917 against the we defendants, viz. the decree-holder in Original Suit No. 402 of 1916 and the auction-purchaser at the sale which took place in execution of that decree. The decree-holder and the auction purchaser filed a common appeal and the first Court's judgment was reversed, although one of the appellants (the auction-purchaser) was, at the time of the appellate judgment, dead and his legal representatives had not been brought on record.
2. It is contended that the appeal had abated, that the Court had no power to pass any decree in favour of the deceased appellant, and that the judgment and the decree were nullities.
3. In Somasundaram Chettiar v. Vaithilinga Mudaliar 41 Ind. Cas. 546 and in Artho Rama Rahu v. Artho Padhi 20 Ind. Cas. 952 it has been held that under Order XLI, Rule 4 of the Code of Civil Procedure, 1908, an Appellate Court has power to reverse a judgment in favour of a deceased defendant as regards the whole of the plaintiff's claim and not only as regards that part of it in which the surviving defendant or defendants were particularly interested.
4. Following these decisions the lower Court was right in dismissing the petition to treat 'the appeal as abated apart from the incompetency of the petitioner to make the application under Order XXII, Rule 3.
5. The civil revision petition is dismissed with costs.
6. Mr. K. Rajah Aiyar who appears for the respondents contends, firstly, that a petition like the one filed in the lower Court by the petitioner before us does not lie. He argues that there is no section in the Code authorising the filing of such a petition. I do not accede to his contention. When the order or decree of a Court is a 'nullity, a party interested in showing it to be a nullity, may apply to the Court to vacate it and if the Court is satisfied about the facts, it ought to do so. I do not think that such an appellation need be filed under any particular section of the Code and the absence of a section does not render the application incompetent. See Chidambaram Chetty v. Ramariathcm Chelty 41 Ind. Cas. 41 .
7. Mr. Rajah Aiyar contended next that the decree-holder is a necessary party to the claimant's suit though the property has passed to the auction-purchaser and that the suit without the decree-holder as, a party would not be maintainable. I do not agree with this contention either. Shiboo Narain Singh v. Mudden Ally 3 Ind. Dec. 940 . In my opinion the decree-holder may be made a party but is not a necessary party.
8. Mr. Rajah Aiyar next contends, that the decree-holder being made a party to the claimant's suit which ended in a joint decree for costs against him and the auction purr chaser, the decree-holder had some interest in prosecuting the appeal. The grounds in the memorandum of appeal were common to him and, the auction purchaser. That being so, I agree with my learned brother in thinking that the principle of the cases in Chintaman v. Gangabai 27 B. 284, Artho Rama Rahu v. Artho Padhi 20 Ind. Cas. 952 and Somdsundaram Chattiar v. Vaithilinga Mutaliar 41 Ind. Cas. 546 applies. The Appellate Court could dismiss the plaintiff s suit in. to to under Order XLI, Rule 4. In this case it is true that the decree-holder had no other interest than the interest he had by reason of, the decree for costs for the decree-holder could not be called upon to refund the purchase-money if the claimant succeeded either by petition (Article 66 of the Indian limitation Act, 1908) or by a regular suit Tirumalaisami Naidu v. Subramania Chettiar 45 Ind. Cas. 109 . But for his result the petitioner was himself responsible. The result is, the petition fails and is dismissed with costs.