1. Order in Civil Miscellaneous Petition No. 100 of 1924 : This is an application to amend the cause title of the decree in Appeal No. 355 of 1917. This appeal was unfortunately heard and determined a few days after the death of the 2nd appellant therein; the fact of this death was not known to the Court or to the vakils arguing the case. The appeal succeeded and a decree was passed in favour of both the appellants. Subsequently when an application was made to pass a final decree in the Original Court, an application was also put in to implead the 2nd appellant's legal representatives. It is suggested for the respondent that that application was out of time, even if the 2nd appellant had been alive on the date of the decree, and on that ground they should not have been brought on record. This is not a question which we have to decide here as that application is not before us; but it appears that this is a case where the delay in bringing on record the legal representatives should be excused; and we do not think that it is a ground for disallowing the present application. The fact that the 2nd appellant was dead on the date of hearing of the appeal cannot put his legal representatives in a worse position than if he had not been a party to the appeal at all; and assuming that he was not a party to the appeal, the decree which was given in favour of his undivided brother, the 1st appellant would enure for the benefit of the other members of the family, namely, these petitioners who now wish to be added. In Order 41, Rule 4 it is laid down, ' Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be,' On this principle we consider that the decree passed legally in favour of 1st appellant must enure for the benefit of all the members of the appellants' family, and as they now wish to be formally brought on record as legal representatives of the deceased 2nd appellant who was not a party when the appeal was heard, we think that this should be allowed; and we may refer to a similar case in Chintaman v. Gangabhai ILR (1903) B 284 where the same order was passed.
2. We are also asked to implead the legal representatives of the 3rd respondent who had also died on the date of hearing. They do not appear to oppose this petition and consequently it may be taken that they assent to its being done.
3. We accordingly order the petition with costs against the contesting respondents.