T.U. Mehta, Ag. C.J.
1. This L.P. A. arises out of the judgment recorded by a single Judge of this Court in Execution Second Appeal No. 1 of 1973. Short facts of the case are that the respondents Nos. 1, 2 and 3, who are respectively Paras Ram, Krishan Dayal and Dharmu and who are the sons of one Ram Ditta, had filed a suit for possession against appellant No. 2 Tulsi, respondent No. 4 Mst. Maro and respondent No. 5 Nanku the son of Lehnu, The dispute in that suit was as regards title to the property arising out of inheritance. Respondents Nos. 1, 2 and 3 succeeded in obtaining a decree for possession in their favour. This decree was subsequently sought to be executed, but at the time of the execution it was found that the present appellants, except Tulsi, and respondents Nos. 6 to 10, were also in possession of certain parcels of the land in dispute. The decree-holders, therefore, joined even these persons as judgment-debtors on the allegation that they were inducted in the land by the original judgment-debtors after the decree was passed. During the execution proceedings which proceeded, the appellants, and the respondents, who are said to have been inducted by the original judgment-debtors, took the plea that they were holding different parcels of the disputed land as tenants, and tenancy rights in their favour were created even before the decree was obtained by the present respondents Nos. 1, 2 and 3.
2. This contention of the objectors was rejected by the Executing Court, and thereafter, by the District Judge in appeal, as also by the learned single Judge of this High Court in second execution appeal. With a special leave by the learned single Judge, these appellants have now preferred this appeal.
3. During the pendency of this appeal, the appellant No. 1 has died on 31-10-1977 and the respondent No. 1 Paras Ram, who was one of the original joint decree-holders, has also died on 26th June, 1977. It is an admitted fact that neither the legal representatives of the respondent No. 1 Paras Ram, nor the legal representatives of the appellant No. 1 Sher Singh are brought on record. Therefore, the question is: What is the effect of non-bringing the legal representatives of Paras Ram on the record of this case.
4. We are not referring to the consequences of not bringing the legal representatives of Sher, Singh on the record of this case because, in our opinion, non-bringing of the legal representatives of Paras Ram in the case is fatal to this appeal.
5. The first preliminary objection which was urged by the learned Advocate of the appellants was that provisions of Rules 3, 4 and 8 of Order 22 of the Civil P. C. which contemplates the bringing of the legal representatives of a deceased party on the record of a particular case do not apply to proceedings in execution of a decree or order as provided by Rule 12 of Order 22.
6. Rule 12 of Order 22 of the Code of Civil Procedure is in the following terms:
'Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.'
7. The contention was that this Letters Patent Appeal is nothing but the continuation of the original execution proceedings and therefore the rules as regards joining of the legal representatives of a deceased party as contained in Rr, 3, 4 and 8 of Order 22 have no application so far as this Letters Patent Appeal is concerned.
8. In our view, the above contention omits to take into consideration the provisions found in Rule 11 of Order 22, which is found in the following terms:
'In the application of this order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal.'
It is thus evident that according to the above quoted Rule 11 of Order 22, the provisions contained in the Code as regards the procedure to be adopted in appeals apply with the only difference that the plaintiff should be understood as appellant, defendant as respondent and suit as an appeal. Now, if a reference is made to Order 41 of the Civil P. C. which refers to appeals, it will be found that it makes no distinction between the appeals preferred against the original decrees passed in suits and the appeals which arise out of execution. That being the position, even if, for the sake of argument, it is conceded that appeal arising out of execution is strictly speaking continuation of execution, the procedure contemplated for such appeals is different. If an analogy can be taken, it can be said thatt every appeal arising out of a suit is nothing but the continuation of the suit itself. But that does not mean that the procedure to be adopted in the original suit-proceedings would be the same which could be adopted in appeal which arises out of that suit.
9. Moreover, another important aspect which should be borne in mind is that unlike execution proceedings appeals on the same point cannot be repeatedly filed. The result, therefore, is that if the legal representatives of a deceased respondent in an appeal are not brought on the record, the reversal of the order of the original court in appeal would bind only the parties who are already on the record but not the legal representatives of the deceased-respondent who are not brought on the record. Thus, in the same matter there would be different types of decrees which would bind the parties to the same proceedings. If these decrees are contradictory, then obviously analogous position would arise.
10. In order to meet the above situation, Shri Kedar Ishwar pointed out that in such cases it would obviously be open to the court to exercise its powers under Rule 33 of Order 41 which enables the appellate court to pass a decree which would bind even the parties who are not on the record. This contention is not acceptable because it is not obligatory on the appellate court to make orders under Rule 33 of Order 41.
11. Shri Kedar Ishwar relied upon two decisions of Patna High Court in support of this preliminary objection. He cited a Full Bench decision given by Patna High Court in Hakeem Syed Mohammad Taqi v. Fateh Bahadur Singh, reported in AIR 1929 Pat 565. The majority of the Full Bench has taken a view in this case that appeals in proceedings relating to execution of a decree are mere continuation of execution proceedings, and there can be no doubt that Rule 12 of Order 22 is applicable to such appeals and consequently Rules 3, 4 and 8 cannot apply. We have gone through this decision as well as the other decision given by the same High Court in Laxmi Narayan Singh v. Dipen Rai, reported in AIR 1950 Pat 290. Both of these decisions undoubtedly support the contention of Shri Kedar Ishwar, but, for the reasons already stated above, we find ourselves unable to follow these decisions. On the contrary, we find that subsequent decisions of almost all High Courts in India have taken a contrary view. Instead of referring to all these decisions, we may only refer to a few of them.
12. In Ahsan Elahi v. Mehr Elahi, reported in AIR 1950 (East) Punj 302, the High Court has held that appeals from orders in execution proceedings are not proceedings in execution within the meaning of Order 22, Rule 32 and therefore not excluded from the rules relating to abatement contained in that Order. It may, therefore, be taken to be settled law that execution appeals are governed by the same rules with regard to abatement as appeals from decrees and orders in suits and therefore the provisions of Rules 3 and 4 of Order 22 apply to the appeals from the orders passed on execution applications. The same view is taken by Andhra Pradesh High Court in Chandra-vati Bai v. Chaganlal, reported in AIR 1962 Andh Pra 308, Previously Lahore High Court had taken the view which was consistent with the view taken by Patna High Court, but subsequently in Ajudhia Pershad Ram Pershad v. Sham Sunder, reported in AIR 1947 Lah 13, a Full Bench of Lahore High Court has overruled its previous view and has dis-.sented from the View taken by Patna High Court. Orissa High Court has taken the same view, as the above referred view of the East Punjab High Court, in Surendranath Patnaik v. Dasarathi Dutta, reported in AIR 1960 Orissa 14, and the subsequent decision in Kusun Samal v. Banamali Roul, reported in AIR 1974 Orissa 105. Calcutta High Court is also of the same opinion as found from Bishnu Bijoy Srimani v. Chandra Bijoy Srimany, reported in AIR 1955 Cal 281. All these High Courts have referred to the above referred Patna decision on which Sri Kedar Ishwar has put reliance, and have dissented from that view. Since we are also of the same opinion, we need not discuss various other rulings supporting the view which we are taking on this point. We, therefore, see no force in this preliminary objection.
13. Now taking up the merits of the question, it is obvious, that the original decree was jointly obtained by respondents Nos. 1, 2 and 3 on the basis of their joint title. All these three respondents were, therefore, jointly interested in the decree and as joint holders of interest all the three of them were necessary parties to the original suit. Under the circumstances, on the death of one of them, namely Paras Ram, presence of his legal representatives was legally necessary in order to avoid conflicting decrees. Under the circumstances, we find that non-joinder of the legal representatives of Paras Ram as parties to this appeal would be fatal to the whole appeal,
14. In our opinion, therefore, the whole appeal abates. The appeal is accordingly disposed of without any order as to costs.