JUDGMENT Raghubar Dayal, J. - Dwarka, the Plaintiff, entered into an agreement for sale of two houses with Defendant No. 1 on the 17th of May, 1944, and paid certain amount as earnest money. On the 25th of May, 1944, Defendant No. 1, however, told the houses to Raghunath and Jagarnath, Defendants Nos. 2 and 3 respectively. Dwarka, therefore, instituted the present suit for specific performance of the con tract of sale by Defendant No 1 and the subsequent vendees, Defendants Nos. 2 and 3. 2. Defendant No. 1 did not contest the suit. He died during the pendency of the suit and his widow Smt. Punni was substituted in his place. Defendants Nos. 2 and 3 contested the suit. The trial court dismissed the suit. On appeal by the Plaintiff the suit was decreed. Against the appellate decree Raghunath and Jagarnath filed this second appeal. 3. During the pendency of the appeal Smt. Punni died. An application for substituting her legal representative was filed beyond the prescribed time and was rejected. 4. Jagarnath, one of the Appellants, also died and his legal representatives have also not been brought on the record. 5. It is clear, therefore, that Jagarnath's appeal against the decree abates and that the appeal also abates against Smt. Punni. In the circumstances, a preliminary objection has been raised that the appeal abates as a whole. I have heard the learned Counsel for the parties on this concention and agree with the preliminary objection. 6. The relief sought in the suit was that a decree for specific performance of the contract directing the Defendants to execute a registered sale deed of the two houses, in accordance with the terms of the agreement of sale, in favonr of the Plaintiff within the time fixed by the court, be passed. 7. It follows, therefore, that the decree of the appellate court decreeing the suit means that the vendor's representative Defendant No. 1 and the vendees, Defendants 2 and 3, were to execute the sale deed of the houses in suit in favour of Dwarka, the Plaintiff. 8. This decree, in view of the death of Smt. Punni and the non-substitution of her legal representatives, becomes final against her and therefore enjoins that she and, in case of her death, her legal representatives' will execute the necessary sale deed along with the other two Defendants. 8. This decree, in view of the death of Smt. Punni and the non-substitution of her legal representatives, becomes final against her and therefore enjoins that she and, in case of her death, her legal representatives' will execute the necessary sale deed along with the other two Defendants. Such a provisions of the decree could have been altered even if she had not appealed in case this Court had found that the present appeal should succeed and that the Plaintiff's suit be dismissed. Such a relief in her favour (sic) have been given by this Court if she had not been impleaded as a Respondent in the appeal but cannot be given now when she had been impleaded as a Respondent and the appeal against her abates. The benefit of the provisions of Rule 33, Order 41, Code of Civil Procedure, can be given by the court to all parties of the suit so long as the suit had not abated against any of the parties on account of its death and the non-substitution of the legal representative. 9. Similarly the result of abatement of Jagarnath's appeal is that a decree in favour of the Plaintiff against Jagarnath stands and that Jagarnath's representatives are bound by the decree which requires them to execute the sale deed along with the legal representatives of Punni and with Raghunath, the other Appellant. 10. It follows that even in case Raghunath's appeal succeeds the decree in his favour to the effect that the suit against him should fail and that he was not to execute the sale deed would be inconsistent with the decree which has become final against Jagarnath's representatives and Purni's representatives and requires them along with Raghunath to execute a sale deed of the property in suit in favour of the Plaintiff. When the effect of the abatement of the appeal of one of the Appellants is the possibility of the existence of two such inconsistent decrees which cannot be executed, it must be held that the appeal abates as a whole so that such undesireable situation does not arise. 11. When the effect of the abatement of the appeal of one of the Appellants is the possibility of the existence of two such inconsistent decrees which cannot be executed, it must be held that the appeal abates as a whole so that such undesireable situation does not arise. 11. The main contention of the learned Counsel for Raghunath the Appellant against the preliminary objection is that Shrimati Punni was not a necessary party to the appeal and that as the defence of Raghunath and Tagarnath was common and the suit had been decided on a common ground, Raghunath alone could have appealed against the entire decree and that, therefore, the death of Jagarnath did not affect Raghunath's right to continue his appeal. 12. I am of opinion that Punni was not an unnecessary party to the appeal. I am referred to the case reported in Thakur Prasad Kalwar v. Ram Khelawan Kalwar 1944 A.W.R. (H.C.) 188 where an observation was made to the effect: The decision, to my mind, is rather remarkable because a Defendant against whom there is a decree is not bound to implead the other Defendants if it is not necessary for him to do so and if he does not so desire. I do not know of any provisions in the CPC which makes it obligatory for a Defendant to implead his co-Defendants as pro forma Respondents in an appeal. It is no doubt desirable that all the parties should be before the appellate court so that their rights may be completely determined. 13. The observations do not mean that it is never necessary for a Defendant to implead in his appeal a co-Defendant. It only means that if, for the purposes of the case, it is not necessary that the co-Defendant be before the appellate court, the Defendant was not bound to implead him. 14. In view of the Full Bench decision in Baij Nath v. Ram Bharose 1953 A.W.R. (H.C.) 312 the other contention in connection with Jagannath's death and Raghunath's right to appeal against the entire decree has no force. 14. In view of the Full Bench decision in Baij Nath v. Ram Bharose 1953 A.W.R. (H.C.) 312 the other contention in connection with Jagannath's death and Raghunath's right to appeal against the entire decree has no force. It was held there: If in a suit the Plaintiff makes a claim against a number of Defendants on common grounds and all the Defendants also contest the suit on common grounds and the suit is decided in favour of the Plaintiff against all the Defendants, an appeal filed by all the Defendants can be heard in favour of the remaining Defendants after one of the appealing Defendants had died during the pendency of the appeal and his legal representatives have not been brought on record so that his appeal has abated, only if the rights and interests of the surviving Defendants were not joint and indivisible with those of the deceased Defendant, and in the event of the success of the appeal, it does not lead to two inconsistent and contradictory decrees. 15. This view fully covers the question before us. The defence of Raghunath and Jagarnath was common. The Plaintiff's claim against them was also on common ground. Both these persons filed the appeal. One of them died. The interests of both the Appellants in the sale deed in suit was one and indivisible and, in the event of the success of Raghunath's appeal there is bound to come into existence two inconsistent and contradictory decrees. The result is that this appeal cannot be heard. 16. It was further held by this Full Bench that "while the appeal of the remaining Defendants can be heard, the decision in it will not enure to the benefit of the legal representatives of the deceased Defendant-Appellant." It follows that any decree in favour of Raghunath Appellant will not be for the benefit of Jagarnath's heirs against whom the decree has become final. 17. Lastly, I may refer to the Supreme Court case reported in Lala Durga Pd. v. Lala Deep Chand 1954 A.L.J 73. 17. Lastly, I may refer to the Supreme Court case reported in Lala Durga Pd. v. Lala Deep Chand 1954 A.L.J 73. Their Lordships considered what the proper form of the decree in suits for specific performance of contract of sale should be and expressed the opinion at page 80 thus: In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the Plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the Plaintiff. He does not join in any special convenants made between the Plaintiff and his vendor; all he does is to pass on his title to the Plaintiff.... We direct accordingly. 18. Such a form of the decree really enforces the contract of sale which had been entered into with the vendor, and the Plaintiff as the vendor is directed to execute the sale deed in favour of the Plaintiff. A simple sale deed executed by the vendor is not to pass good title to the Plaintiff as the sale in favour of the subsequent transferee had deprived the vendor of his title, that sale being not void. It is, therefore, necessary that the subsequent transferee should join in the education of a sale deed in favour of the Plaintiff so that the title to property, which vests in the subsequent transferee, effectually passes to the Plaintiff. This being the position of the relative rights and liabilities of the Plaintiff, the vendor and the subsequent transferee in such a suit, and this being the proper form of the decree, it appears to me that in a suit for specific performance of a contract of sale all these three parties, namely the person with whom the contract of sale was entered into by the owner vendor, the owner himself and the subsequent transferee really form one unit and should all be before the court for the passing of a proper, effective decree. It necessarily follows, therefore, that in the absence of any such party the suit cannot proceed and no effective decree can be passed. The necessary result is that, in case some of the parties are not before the court on account of the suit or appeal having abated against them, the suit or appeal should be held to have abated as a whole. The necessary result is that, in case some of the parties are not before the court on account of the suit or appeal having abated against them, the suit or appeal should be held to have abated as a whole. 19. I, therefore, agree with the preliminary objection and hold that this appeal abates as a whole on account of the deaths of Jagarnath, one of the Appellants, and Smt. Punni, one of the Respondents, and on account of non-substitution of their legal representatives. 20. Leave to file a special appeal is granted.