1. The facts of the case out of which this appeal arises are these:
In khatian No. 128 the rent of the holding was entered as Rs. 10. The plaintiffs who are the tenants of the holding brought a suit under Section 106, Ben. Ten. Act, on the allegation that the rent was really Rs. 7, and praying that the record might be corrected accordingly.
2. The Assistant Settlement Officer held that the rent was Rs. 10 as entered in the Record-of-Eights and dismissed the plaintiffs' suit.
3. The plaintiffs appealed to the Special Judge. The Special Judge was of opinion that the rent was Rs. 7 and decreed the appeal.
4. The landlord-defendants, who are four in number, appealed to this Court.
5. Before the hearing of the appeal one of the appellants, defendant 4, died. His heirs have not been brought on the record and consequently the appeal, so far as he is concerned, has abated.
6. The respondent now contends that as the appeal has abated with regard to one of the appellants the whole appeal must fail because the right to appeal does not survive to the other three appellants alone. If they are allowed to appeal and are successful, the result will be that so far as some of the landlords are concerned, the rate of rent will be Rs. 7 and as regard others Rs. 10. The contention no doubt is correct: see Kali Day ail v. Nagendra Nath  24 C.W.N. 44. The appellants, however, argue that the three appellants, who are still on the record can appeal and as regards the appellant in whose case the appeal has abated the Court can apply the principle of Order 41, Rule 4.
7. His counsel contends that the three appellants on the record have appealed from the whole decree on grounds which are common also to appellant 4 and that therefore the Court can reverse or vary the decree in his favour also (Order 41 Rule 4).
8. The first difficulty I have in accepting this contention is that I cannot imagine that the Court can vary or reverse a decree in favour of a person who is dead and no longer has any existence. So far as defendant 4 is concerned, he is no longer a defendant, for he is dead. Possibly he has some heirs, but they are not on the record and so are obviously not parties. Order 41, Rule 4 can have no application therefore. A dead person is no longer a party to a suit in any capacity. No doubt the death of an appellant does riot cause the appeal to abate if the right to appeal survives, but this does not mean that any decree can be passed in favour of the dead person. It merely provides that his heir or representatives may carry on the litigation, and if they so desire, have themselves duly been made party. There is a further consideration which I think also makes it clear that Order 41, Rule 4 an have no application. The appeal having abated so far as appellant 4 is concerned the rights between him and the respondents have been determined.
9. As pointed out by Sargent, C.J., in the case of Bhikaji v. Purshotam  10 Bom. 220 an order of abatement is virtually a decree as it disposes of the plaintiff's (in this case the appellants') claim as completely as if the suit has been dismissed. This view was followed by the Madras High Court : Subbayya v. Saminadayyar  18 Mad. 496. So long as the orders of abatement remain it must be considered to have determined the rights between the parties. To allow an appellant whose appeal has abated to gain the advantage of Order 41, Rule 4 would result in the anomaly that, so far as that appellant was concerned, there would be two decrees in the same suit in existence at the same time: one in his favour and one against him. The conclusion to which I have no difficulty in coming is that Order 41, Rule 4 cannot be applied to the case of an appellant whose appeal has abated by his death.
10. No doubt there are decisions to the contrary : Chintaman Nilkant v. Gangabai  27 Bom. 284; Somasundaram v. Vaithilinga  40 Mad. 846. The view however which I have taken seems to have found favour with this Court : Protap Chandra v. Durga Charan  9 C.W.N. 1061. Clearly the appeal as it now stands is incompetent, for one of the necessary parties in whose absence the appeal could not proceed is not on the record. The appeal must therefore be dismissed as being incompetent. The respondent is Entitled to his costs. Hearing-fee : one gold mohur.
11. The suit out of which this appeal arises was one under Section 106, Ben. Ten. Act. The tenants were the plaintiffs in that suit. Their prayer was for a correction of a certain entry in respect of khatian No. 128 on the allegation that the rent of the holding was Rs. 7 and not Rs. 10 as entered in the Record-of-Eights. The Assistant Settlement Officer who tried the suit held that the rent of the holding was Rs. 10, and on that finding he dismissed the suit. On appeal the learned Special Judge found that the rent, of the holding was not Rs. 10 but Rs. 7, and accordingly he directed a correction of the entry as prayed for. The defendant-landlords have appealed to this Court.
12. On behalf of the respondents a preliminary objection has been taken that the appeal is incompetent. It appears that one of the appellants, defendant 4, died after the institution of the appeal to this Court, and it appears also that his legal representatives have not been brought on the record. It was said that under Order 22, Rule 3, Civil P.C., the result of this is that the appeal has abated so far as defendant 4 is concerned, and after that abatement the appeal does not stand properly constituted. To meet this contention a number of cases decided by Courts other than this Court were cited before us. Among them are the cases of Chandar Sang v. Khimabhai  22 Bom. 718; Chintaman Nilkant v. Gangabai  27 284, Ram Sewak v. Lambar Pande  25 All. 27 and Somasundaram v. Vaithilinga  40 Mad. 846. These cases were decided on the principle laid down in Order 41, Rule 4, Civil P.C. Order 41, Rule 4 runs thus:
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.
13. It was said that although defendant 4 had died and his legal representatives had not been brought on the record, the Court might proceed to hear the appeal under Order 41, Rule 4. I do not think that this contention is sound. In cases falling under Order 41, Rule 4 the Court may reverse or vary the decree in favour of all the plaintiffs or defendants. But in the present case that is not possible. The appeal has abated so far as defendant 4 is concerned. This order of abatement operates as a judgment as between him and the respondents to the same extent as a judgment on merits : Rahimunnissa Begam v. Srinivasa Aiyangar  38 M.L.J. 266. For the determination of the question, whether the appeal is competent after partial abatement, the true test seems to be whether the appeal can be heard in the absence of the appellant who is dead. Now whether the appeal can be heard in the absence of one of the appellants will depend on the nature of the suit and the decree made. In the present case the suit was for correction of a certain entry in the Record-of-Rights and the decree made was the correction of that entry from Rs. 10 to Rs. 7. The appeal, if heard, will have to be either allowed or dismissed. There would be no difficulty in the case of dismissal. But considerable difficulty will arise in case the appeal is allowed. The figure Rs. 7 will have to be altered in the case of the present appellants, but it will have to be kept intact so far as the heirs of defendant 4 are concerned. This, I need hardly say, would be an impossible position. I am therefore of opinion that, in the circumstances of the case the appeal cannot be heard in the absence of the legal representatives of defendant 4. The result of the partial abatement is that the appeal is imperfectly constituted, and in the absence of necessary parties I do not think that we can proceed to decide the appeal on merits. In this view of the matter I am supported by the decision in the case of Kali Dayal v. Nagendra Nath  24 C.W.N. 44. The preliminary objection must therefore be sustained and the appeal dismissed with costs.