R.P. Mookerjee, J.
1. Defendant 2 is the appellant in this Court and this appeal arises out of a suit for specific performance of contract. The plaintiff's case was that Uttar Manikpur Hitakari Bank, which is represented in these proceedings through its Secretary, had agreed to sell certain lands to the plaintiff under certain conditions. That offer was accepted but the Bank did not accept the amount and the property was sold by the Bank to defendant 1. Hence the suit for specific performance.
2. Defendant 1, the subsequent transferee from the Bank, filed a written statement denying all allegations of collusion with the Bank or its officers and further pleaded that he was a bona fide purchaser for value without notice of the alleged previous contract with the plaintiff. Defendant 2 filed a separate written statement alleging that the plaintiff did not fulfil her part of the contract, time was of the essence of the contract, and denying all the other allegations made about collusion and other statements. The learned Munsif decreed the suit in part directing defendant 2 to execute and register a kobala in favour of the plaintiff in respect of the property in suit within a particular date and in default, the kobala was to be executed by the Court at the costs of defendant 2. An appeal was taken against this decision by defendants 1 and 2 before the Court of the District Judge. A cross-objection was filed by the plaintiff with a prayer that defendant 1 should also be directed to execute and register the kobala jointly with defendant 2.
3. Two points were raised before the learned District Judge, The first with regard to the fact whether there was any contract of a sale as assorted by the plaintiff and if so, whether the plaintiff had fulfilled her part of the contract entitling her to specific performance of the said contract. The second point taken up for consideration by the Court was whether the trial Court erred in not directing the execution of the kobala by defendant 1 jointly with defendant 2. The first point was found against the appellant and the appeal was dismissed. With regard to the second point, the Court allowed the cross-objection directing both defendants 1 and 2 to execute the kobala.
4. A second appeal has been filed by defendant 2, the Secretary of the Uttar Manikpur Hitakari Bank making the plaintiff as also defendant 1 respondents to the appeal. During the pendency of this appeal in this Court, defendant 1 died and no steps were taken within 90 days by the appellant for bringing the heirs on the record. Subsequently, the appellant obtained a Rule from this Court (C. R. 1202 (S) of 1947) to show cause why the abatement should not be set aside and the heirs of defendant 1 brought on the record. This Rule came up for hearing on 19th February and was discharged. An application for setting aside the abatement and for substituting the heirs of the deceased respondent 2, was rejected. The further contention on behalf of the petitioner appellant that the heirs of the deceased respondent might be added as party respondents to the appeal was also disallowed.
5. On behalf of the respondents a preliminary objection had been taken to the competency of the present appeal. It is contended that the appeal having abated, so far as defendant 1 is concerned, the present appeal is not properly constituted and ought to be dismissed.
6. On behalf of the appellant Mr. Ghose contends that under Order 41, Rule 4, Civil P, C., it is competent for this Court at this stage to hear the appeal and to give relief even to the dead defendant against the heirs of respondent 2, against whom the appeal has already abated. Rule 4 will be attracted only if 'the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants'. As indicated already, defences as put forward by the two defendants were not identical. Defendant 1 had rested his case particularly, if not wholly, on the plea that he was a bond fide purchaser for value without notice of the earlier transaction. Defendant 2, on the other hand, contested the claim of the plaintiff to obtain specific performance, because the plaintiff has failed to do or perform her part of the contract.
7. Mr. Ghose argues that the common ground on which both the defendants could and did resist the claim of the plaintiff was that the suit as framed impleading the Uttar Manikpur Hitakari Bank as being represented by its Secretary, was bad in law. The suit is not maintainable against the Secretary but ought to have been brought against the Bank registered under the Co operative Societies Act.
8. Under rule 4, the decree appealed from must proceed on a ground common to the defendants, but in this particular case the ground which is proposed to be urged in this Court, as being the common ground to all the defendants, does not find any place in the judgment of the lower Court far less being a ground on which the judgment was based. The view has been consistently held in this Court ever since the decision in the case of Protab Chunder Dutt v. Kurbanissa Bibee, reported in 14 W. Rule 130, that the relevant provision of the Code of Civil Procedure does not empower an appellate Court to exercise the power with which it proposes to base its own decision is common to all the defendants, but only when it also finds that the decision of the lower Court has proceeded on such common ground. It may be noted in passing that Section 337 of the Code than in force, was in terms similar to Rule 4 of Order 41 of the present Code. At p. 131 Dwarkanath Mitter J. observed as follows:
'Section 337 of the Code of Civil Procedure says, it is true, that an Appellate Court may, on the appeal of one defendant only, reverse the entire decree of the lower Court in favour of all the defendants; but that very section says that this power can be exercised only 'when the decision of the lower Court has proceeded upon a ground common to all the defendants.' In the present case, the decision of the Munsif did not and could not proceed upon a ground common to all the defendants. The defences set up by them were altogether different from one another and whilst the plaintiff was bound to prove his bill of sale as against the defendant, Abedoonissa, he was under no such obligation so far as the other defendants were concerned. The issue as to whether that bill of sale is a genuine instrument or not was laid down by the Munsif, it is true, but that issue had been raised by the defendant Abedunnissa alone, and she was the only party interested in its adjudication. Defendant 2 had nothing whatever to do with it, for his defence was that he was entitled to hold possession of the lands in question as a tenant of the plaintiff.'
The separate defences filed in the present suit also indicate the different nature of the defence as put forward by the two defendants. It is only when the decree appealed against has proceeded upon a common ground to all the defendants, that is, when the Court below has made a decree against several defendants upon a finding which applies equally to all of them, that under the relevant provisions any one of the defendants may appeal against the whole decree and the appellate Court may reverse or modify that decree in favour of all the defendants, even though some of those defendants may not be before the Court (vide Puran Mal v. Krant Singh, 20 ALL 8: (1897 A. w. N. 154) and Chajju v. Umrao Singh, 22 ALL 386: (1900 A. W. N. 120).
9. On the facts of the present case, there is no escape from the conclusion that the ground which the appellant wants to urge in this Court as being a common ground for defendants 1 and 2 was not urged or made the basis of the decision of the Court below. Rule 4 cannot, therefore, be attracted.
10. It is not necessary in view of this decision to go into the other points affecting the applicability of Rule 4 of Order 41, Civil P. C. When there is already an Order of abatement recorded by the Court, it has been decided in some earlier decisions that Rule 4 cannot be attracted (vide Pratap Chandra v. Durga Charan, reported in 9 C. W. N. 1061 and Naimuddin Biswas v. Maniraddin, reported in : AIR1928Cal184
11. I must, therefore, hold that the appeal having abated against the heirs of the deceasad defendant 1, defendant 2 is not competent to maintain this appeal. The appeal is accordingly dismissed with costs. Leave to appeal under Clause 15, Letters Patent was asked for and refused.