1. This appeal arises out of a suit, brought by six plaintiffs for recovery of possession of a homestead on declaration of their title thereto. The suit was dismissed by the Munsif on the 29th November 1915. Against that dismissal all the plaintiffs jointly preferred an appeal in the Court of the District Judge of Jessore. That appeal was argued before that Court on the 31st January 1917, and the judgment was delivered on the 2nd February 1917. But it is [admitted that the first plaintiff appellant, Kailash Menjhi, died on the 1st January 1917. The information of his death was not given to the lower Appellate Court. As the plaintiffs pleaded a joint title, the right to sue was one which did not survive to the surviving plaintiffs. The result consequently was that rule 3, Order XXII, Civil Procedure Code, came into operation, and the suit, that is to say, the appeal before the lower Appellate Court abated under the second Clause of that section. No application was made by the other plaintiffs-appellants to have the legal representatives of Kailash Manjhi made parties to that appeal at any time within six months of his death. The learned District Judge decreed that appeal and passed a decree in favour of all the plaintiffs in ignorance of Kailash Manjhi's death. Against that decree the sole defendant appealed making all the plaintiffs, as they appeared on the record, respondents. Notice was served on the living respondents on the 20th November 1917, and the notion on Kailash was returned unserved with the report of his death, and that, according to the defendant-appellant, was the first time he learnt of his death. He then made the heirs of Kailash parties to the appeal before this Court, and they appear and we have heard the learned Vakils for the appellant, for the survivors of the original plaintiffs and for the heirs of Kailash.
2. It is contended that Order XLI, rule 4, Civil Procedure Code, operates in favour of the surviving plaintiffs. But we think that when a plaintiff prefers an appeal in which other plaintiffs are interested, that Section does not authorize him to proceed with the appeal without making other plaintiffs parties to the appeal. In the present case, they, all the plaintiffs, are necessary parties.
3. It is further contended that as the heirs of Kailash are now before this Court, the appellant defendant cannot say the appeal has abated. But the effect of allowing the appeal to be heard and the decree passed by the lower Appellate Court in ignorance of the death of one of the joint plaintiffs was that that judgment and decree became a nullity. The heirs of Kailash might have applied, within six months from the date of their father's death, to have the decree set aside and the appeal re-heard, but they having taken no action, the whole appeal must be held to have abated.
4. The result is that the decree of the lower Appellate Court being a nullity, the original judgment of the first Court must stand and the suit must be dismissed in accordance with that decree.
5. The appellant will get his costs in this Court as well as in the lower Appellate Court.