1. The facts are these Five persons brought a suit to establish their right to a site and obtained a decree. The defendant appealed. His appeal succeeded on 28th October, 1919, but before that date, on 2nd September, 1918, the 2nd plaintiff died. His name, however, continued on the record and the appeal was disposed of without his legal representatives having been added. The other plaintiffs and his legal representatives, who were added as parties by the High Court, preferred a second appeal, on which the High Court passed the following judgment:
There being a question whether the 2nd plaintiff was not dead when the appeal was heard, both sides agree that the decree should be set aside and the appeal remanded for disposal according to law.
2. This judgment was delivered on 19th November, 1920. On 29th March, 1924, the defendant filed an application to set aside the abatement. This application was rejected by the Subordinate Judge. Appeal against order No. 419 is an appeal against his order. The appeal against the decree was then heard and the Subordinate Judge dismissed it, holding that the whole appeal had abated. Second Appeal No. 742 is an appeal against his judgment.
3. [A] It is argued that, as the High Court brought the legal representatives on to the record, they must be held to have been brought on to the record for all purposes and not for the limited purpose of enquiring into the question raised before the Court. We cannot accept this argument. It is obvious from the terms of the High Court's order that the defendant must have alleged that the 2nd plaintiff was still alive when the appeal was disposed of on 28th October, 1919 and, we think that the legal representatives were brought on to the record for the limited purpose of a decision on that allegation. [A] On the merits, the appellant has to show sufficient cause for his failure to apply before 29th March, 1924, to get the abatement set aside, His explanation is that he 'was advised that the bringing on to the record of the legal representatives by the High Court was sufficient for all purposes.'
4. Assuming that that is a good cause, it only explains his delay after 19th November, 1920 and he has to explain his delay before that date. As to that, he says that he was not aware of the death of the 2nd plaintiff till after he received notice of the second appeal. This it is impossible to believe. He was living only two miles from the village where the 2nd plaintiff lived and died. The site in dispute lies between a house belonging to him and the house of the plaintiffs. We think that he must certainly have been aware of the 2nd plaintiff's death long before the appeal was decided. His appeal must, therefore, be dismissed with costs.
5. We now come to Second Appeal No. 742. The lower Court has based its conclusion on certain decisions of the Calcutta High Court, one of which is reported in Basir Sheikh v. Fazle Karim 28 Ind. Cas. 703 : 19 C.W.N. 290. There a decree for joint possession had been passed in favour of five plaintiffs. The appellant failed to serve notices on two of them and the appeal as against them was dismissed. When the appeal was heard, it was argued that it was useless for the Court to proceed, because the entire decree could be executed by the two persons against whom the appeal had been dismissed and this argument was accepted. The decision was followed in another case, reported in Sriramchandra Naik v. Hridoy Nath Gupta 51 Ind. Cas. 409 : 29 Cri.L.J. 461 and both decisions were followed in Kali Dayal Bhattacharjee v. Nagendra Nath Pakrashi 54 Ind. Cas. 822 : 24 C.W.N. 44 : 30 Cri.L.J. 217. [B]We think that the principle laid down in these decisions is correct. The whole decree can be executed by the legal representatives of the 2nd plaintiff and it would be idle to ask the Court to pass a contrary decree as against the other plaintiffs. [B] The second appeal must be dismissed with costs.