JUDGMENT Sen, J. - The point for decision in this Rule arises in this way. The Defendants are the landlords of the Plaintiffs; they had certificate powers and took out a certificate against the Plaintiffs, claiming rent from them at the rate of Rs. 9 per annum. The Plaintiffs contended that the rent was Rs. 5 per annum. They succeeded before the Certificate Officer but on appeal the Collector held that the rent payable was Rs. 9 per annum. The Plaintiffs paid the amount decreed and then instituted this suit for a declaration that the rent payable was Rs. 5 per annum and for the recovery of the excess paid by them. The trial Court decreed the Plaintiffs' suit. On appeal the District Judge reversed the decision of the trial Court and dismissed the Plaintiffs' suit. There was an appeal to this Court which was heard by me. I set aside the decree of the District Judge and remanded the appeal for rehearing to the District Judge with certain observations. While the appeal on remand was pending for hearing before the learned Judge, the Defendants discovered that one of the Plaintiffs had died while the appeal was pending in this Court and that the heirs of that Plaintiff had not been substituted. They then applied to this Court and obtained this Rule on the Plaintiffs to show cause why it should not be held that the appeal in this Court had abated so far as the deceased Plaintiff is concerned and why as a consequence the whole appeal should not be dismissed. 2. The facts are not denied. It is admitted that Nanda Kumar, one of the Plaintiffs, died on the 18th June, 1939, while the appeal was pending in this Court and that his heirs have not yet been substituted. The question which arises is whether this would cause the appeal to abate so far as Nanda Kumar is concerned and whether as a consequence the appeal has abated as a whole. 3. The topic of abatement is dealt with in Or. 22 of the Code of Civil Procedure. The relevant rules under the Order which have to be considered are rr. 3 and 11. 4. 3. The topic of abatement is dealt with in Or. 22 of the Code of Civil Procedure. The relevant rules under the Order which have to be considered are rr. 3 and 11. 4. They are as follows: Rule 3--(1) Where one or two or more Plaintiffs die and the right to sue does not survive to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the right to sue survives, the Court, on an application made in that 'behalf, shall cause the legal representatives of the deceased Plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub r. (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the Defendant the Court may award to him the costs which he may have incurred in defending the suit, to be re-covered from the estate of the deceased Plaintiff. Rule 11. 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. 5. Making the necessary changes in r. 3 it would read thus: 3. (1) Where one or two or more Appellants die and the right to sue does not survive to the surviving Appellant or Appellants alone, or a sole Appellant or sole surviving Appellant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representatives of the deceased Appellant to he made a party and shall proceed with the appeal. (2) Where within the time limited by law no application is made under sub-r. (1), the appeal shall abate so far as the deceased Appellant is concerned, and, on the application of the respondent the Court may award to him the costs which he may have incurred in defending the appeal, to be recovered from the estate of the deceased Appellant. 6. There can be no question that by-virtue of this Rule the appeal has abated so far as Nanda Kumar is concerned inasmuch as the right to sue does not survive to the surviving Appellants alone. 7. The question which remains is whether the appeal has abated as a whole. 6. There can be no question that by-virtue of this Rule the appeal has abated so far as Nanda Kumar is concerned inasmuch as the right to sue does not survive to the surviving Appellants alone. 7. The question which remains is whether the appeal has abated as a whole. Now there is no provision in the Code which directly deals with this question. It will therefore have to be answered by reference to certain general principles of law. 8. If in this suit one of the Plaintiffs had died and his heirs had not been substituted in time, would the suit have abated as a whole? If it would, then does it not necessarily follow that an appeal by the Plaintiffs would also abate as a whole if one of the Plaintiff-Appellants dies pending the hearing of the appeal and his heirs are not substituted? My answer to the first question would be in the affirmative but I would answer the second question by saying that it does not necessarily follow that the whole appeal would abate. My reasons are these : The Plaintiffs in this suit are asking the Court to decide that the rent payable by them as joint tenants of a single tenancy is Rs. 5 and not Rs. 9. In such a suit all the tenants must be before the Court, otherwise there will be the danger of inconsistent decrees being passed with respect to one and the same subject-matter. If one of the tenants is not before the Court and a decree is passed, declaring the rent to be Rs. 9 and not Rs. 5, the decree will not be binding on the absent tenant as no decree can be passed against a person who has not had an opportunity of being heard. To pass a decree against such a person would offend against the elementary principle "audi alteram partem" The tenant who was not a party would be free to re-agitate the matter and possibly obtain a decree in direct conflict with the previous one. For this reason the Court would not pass a decree against the surviving Plaintiffs only in the absence of the heirs of the deceased Plaintiff. For this reason the Court would not pass a decree against the surviving Plaintiffs only in the absence of the heirs of the deceased Plaintiff. Again, if the Court were to pass a decree in favour of the surviving Plaintiff-tenants only, the position would be this : The decree not being in favour of the absent tenant he could not enforce it or rely on it and the landlords could ignore the decree so far as the absent tenant is concerned. This again would lead to an anomalous state of things. An analysis of these difficulties shows that they could be overcome if the Court had the power to decree the suit in favour of or against a Plaintiff who is not before it and that the ultimate reason why the suit must abate as a whole is that the Court has not been given this power in a suit. The CPC makes no exception to this general rule so far as suits are concerned. The position is, however, different in an appeal. Or. 41, r. 4, creates an exception to this general rule. It runs as follows : 4. 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. 9. The Appellate Court therefore has the power to pass a decree in favour of a person who is not before it in the circumstances stated in the Rule. In the present case the decree in the Court below has proceeded on a ground common to all the Plaintiff-tenants. Although Or. 9. The Appellate Court therefore has the power to pass a decree in favour of a person who is not before it in the circumstances stated in the Rule. In the present case the decree in the Court below has proceeded on a ground common to all the Plaintiff-tenants. Although Or. 41, r. 4 does not in terms apply to the present set of circumstances inasmuch as the deceased Plaintiff had in fact appealed and had died pending the appeal, nevertheless, I think, that as the Appellate Court has the power to reverse or vary the decree in favour of all the Plaintiffs, including a Plaintiff who has not been made a party to the appeal, it can exercise the same power in favour of the heirs of a Plaintiff who was an Appellant and who has died pending the appeal, although such heirs have not been made parties to the appeal. The position is essentially the same as if that deceased Plaintiff had not appealed at all. The cases of Karimannessa Bibi v. Juran Mondal 59 C.L.J. 318 (1932), Satulal Bhattacharjee v. Asiruddi Sheikh 59 C.L.J. 362 (1934) and the case of Somasundaram Chettiar v. Vaithilinga Mudaliar ILR 40 Mad. 846 (1916) support the view taken by me, but a different view seems to have been taken in the case of Naimuddin Biswas v. Maniruddin Laskar 32 C.W.N. 299 (1927) and Rai Harendranath Choudhuri v. Dwijendra Nath Banerjee 53 C.L.J. 29 (1933). In the circumstances I respectfully follow the decisions first cited and hold that the appeal has not abated as a whole. There was therefore no difficulty in the way of this Court passing the order of remand that has been passed. The Rule is accordingly discharged. There will be no order for costs. Let the records be sent down without delay as prayed for.