D.P. Mohapatra, J.
1. This is a defendant's second appeal against the confirming decision of the Courts below decreeing the plaintiffs' suit.
The plaintiffs filed O. S. No. 216/66-1 in the Court of the Munsif, Puri, for declaration of title, confirmation of possession and for recovery of damages of Rs. 20/- in respect of a strip of land measuring 335 into 15 links appertaining the Sthitiban plot No. 963, as shown in red ink in the sketch map attached to the plaint. The gist of their case was that the disputed strip of land with a mango tree standing thereon was a part of their plot No. 953 which was demarcated by a ridge from plot No 964 belonging to the defendants. The plaintiffs asserted that they were in possession of the disputed strip of land along with the mango tree standing thereon. The defendants with a view to amalgate a portion.of the suit strip of land removed the intervening ridge on 9.7.1965 and subsequently forcibly plucked mango from the tree in question. Hence the suit.
The defentants in their joint written statement contested the claim of the plaintiffs that the disputed strip of land appertains to plaintiffs' plot No. 963 and asserted that it is a part of their plot No. 964 and they have been in possession of the same for last several decades.
2. The trial Court decreed the suit on contest against the defendants, declared the plaintiffs' title over the suit land measuring 300 links into 10 links as per the Commissioner's report marked as Ext. 6, including the mango tree and their possession over the same. The plaintiffs were entitled to recover Rs. 20/- from the defendants towards damages. On appeal by the defendants the decision of the trial Court was confirmed and the appeal was dismissed.
The present second appeal was filed by all the four defendants in the suit. During the pendency of the appeal appellant No. 4, Subal Charan Patnaik who was defendant No. 4 in the trial Court and appellant No. 4 in the lower appellate 'Court died and the order sheet reveals that in spite of several adjournments no steps were taken to substitute the legal representatives of the said deceased appellant. By order, dated 20th of February, 1984 this Court while giving 10 days time as last chance directed that in case no steps are taken for substitution the effect of non-substitution in place of appellant No. 4 shall be considered at the time of hearing. Thereafter neither any step for substitution has been taken by the appellant nor any other relevant material has been placed before the Court.
3. At the commencement of the hearing of the appeal Shri R. K. Mohapatra, learned counsel for the appellants raised the preliminary objection that due to non-substitution of the legal representatives of the deceased-appellant, Subal Charan Patnaik the appeal has abated so far as the said appellant is concerned and as a consequence of such abatement the entire appeal has become incompetent. He contends that since the decree raised by the Court below was a joint one and the defendants appellants were in the nature of joint tortfeasor the entire appeal is liable to be dismissed for non-prosecution in the absence of the legal representatives of the deceased, one of the appellants.
Shri A.K. Bhagat, the learned counsel appearing for the appellants, while accepting the position that the appeal abates so far as appellant No. 4, Subal Charan Patnaik is concerned has contended that the entire appeal is not affected by such abatement. He has placed reliance on Order 41, Rule 4, C. P. C, in support of his contention.
4. Order 41, Rule 4, C. P. C, reads as follows :
"4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all :
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 alt the- defendants, any one- at 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."
This provision has been held by the Supreme Court in the case of Rameswar Prasad and Ors. v. Shambehari Lal Jagannath and Anr. ( A. I. R. 1963 S. C. 1901) to apply only to cases where out of several plaintiffs or defendants some file the appeal impleading the others as respondents and one of such respondents dies during the pendency of the appeal and hrs legal representatives are not substituted, but does not apply to a case where all the plaintiffs or defendants join, in filing the appeal and one of the appellants dies and his legal representatives are not substituted. The decision proceeds to hold that in such a case the entire appeal becomes incompetent, since even in case of success by the remaining appellants there will be conflicting decrees in respect of the same suit. In such circumstances, the principles of Order 41, Rule 4 do not come to the assistance of concerned parties. The decision also considered the provision of Order 41, Rule, 33, C. P. C, and held that the said provision is of no greater help to the contention of the appellants that their appeal could continue even though the appeal by one of them has abated. The Court observed that the discretionary power under the provision cannot be exercised to nullify the effect of the abatement of the appeal so far as the deceased appellant is concerned. In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of the deceased appellant and the respondents one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. The principles laid down in this case were considered and approved in subsequent decisions of the Supreme Court in the cases of Sri Chand and Ors. v. Jagdish Pershad Kishan Chand and Ors. (A. I. R. 1966 S. C. 1427) and Ramagya Prasad Gupta and Ors. v. Murli Prasad and Ors. (A. I. R. 1972 S. C. 1181).
5. The learned counsellor the appellants has relied on A. I. R. 1971 S. C. 742 ( Mahabir Prasad v. Jaga Ram and Ors. ) in support of his contention. A bare reading of the decision shows that it has no application to the present case. In the said decision the Court held that the principles of Order 41, Rule 4, C. P. C. apply when other persons who were parties to the proceeding before Subordinate Court and against whom a decree proceeded on a ground which was common to the appellants and to those other parsons ate either not impleaded as parties to appeal or are impleaded as respondents. The decision does not lay down the proposition that the principles of Order 41, Rule 4, C. P. C, apply also to a case where one of several appellants dies during pendency of the appeal and there is no substitution of his legal representatives.
6. In view of the principle laid down by the Supreme Court the objection raised by Mr. R.K. Mohapatra succeeds and it is held that this appeal has become Incompetent for want of substitution of the legal representatives of the deceased appellant No. 4, Subal Charan Patnaik and cannot proceed. Accordingly the second appeal is dismissed. The parties will bear their own costs of this appeal.