JUDGMENT : Narasimham, C.J. - This is an appeal by some of the Defendants against the appellate judgment of the Subordinate Judge of Balasore reversing the judgment of the Munsif of Balasore and decreeing the Plaintiffs suit against Defendants 3 to 20. 2. Plaintiffs 1, 2 and 3 and the father of Plaintiffs 4 and 5 were usufructuary mortgagees of the disputed property from one Sadhu Charan Mohanty who was the grandfather of Defendant 1 and father of Defendant 2. The mortgage bond is dated the 3rd March 1937. The Plaintiffs alleged that the mortgagees took possession of the disputed property and cultivated it till the 15th November, 1937. When they were dispossessed by Defendants 3 to 20 who claimed the property by virtue of a decree in the Rent Court and subsequent sale in execution of that decree. These Defendants were the co-sharer landlords in respect of the suit property. The Plaintiffs alleged that they were thus dispossessed by Defendants 3 to 20 and under the terms of the mortgage bond they (Plaintiffs) were entitled to realise the mortgage money with interest amounting to Rs. 260/- from the Defendants. Hence they brought the present suit for a mortgage decree and sale of the property. 3. The main contest in the trial court was by Defendant 4 who was one of the cosharer landlords. He stated that Defendants 3 to 20 obtained a rent decree and purchased the property in execution of that decree on the 25th June 940 and obtained delivery of possession. Defendants 3, 5, 6 and 9 to 19 did not contest and they were set down expert Defendants 7 to 20 were minors and the Pleader guardians appointed for them denied the claim of the Plaintiff and put them to strict proof of the same. The learned Munsif held that Defendants 3 to 20 who were admittedly eight and as co-sharer landlords had obtained a rent decree against Defendants 3 to 20 in the manner provided in Section 212(2) of the Orissa Tenancy Act and purchased the property in execution of that decree. Hence the Plaintiffs mortgage cannot prevail over the rent decree and the Plaintiffs were entitled to a money decree against the mortgagees (Defendant 1 and 2) only and he dismissed the suit against the other Defendants. Hence the Plaintiffs mortgage cannot prevail over the rent decree and the Plaintiffs were entitled to a money decree against the mortgagees (Defendant 1 and 2) only and he dismissed the suit against the other Defendants. The Plaintiffs, however, preferred an appeal contending inter alia that the rent decree obtained by the co-sharer landlords was really a money decree and that, consequently, it could not prevail over the prior mortgage in favour of the Plaintiffs. This agreement appears to have found favour with the lower Appellant court. He passed a joint decree for Rs. 230/- against an the Defendants and directed the sale of the mortgaged properties if the decretal dues were not realised. The contesting Defendants filed the present second appeal against this decision of the lower appellate court, but while the appeal was pending in this Court, an affidavit was filed by one Dibakar Mohapatra on behalf of the Appellants to the effect that one Sulabha Mahapatra who was Defendant 3 in the trial court, and Respondent 2 in the lower appellate court, had died on the 1st August, 1954 prior to the passing judgment by the lower appellate court-and that no steps for the substitution of his legal representatives were taken by the Plaintiffs. He further brought to the notice of this Court that one Jagannath Mohapatra who was Defendant 12 in the trial court and Respondent 11 in the lower appellate court had died on the 3rd October, 1952 (prior to the decision of the trial court) and that no steps were taken for substitution of his legal representatives; The facts as stated by him in that affidavit, were not challenged. 4. At the time of the hearing of this appeal Mr. Roy on behalf of the Appellants urged that the interest of the cosharers-landlords Defendants 3 to 20 in the disputed property was joint and indivisible and that as Sulabha Mohapatra (Defendant No. 3) and Jagannath Mohapatra (Defendant No. 12) had died without proper substitution of their legal representatives, the appeal before the lower appellate court abate as against all the cosharer-landlords (Defendant Nos. 3 to 20). He urged that the lower appellate courts judgment against those Defendants should, therefore, be set aside. 3 to 20). He urged that the lower appellate courts judgment against those Defendants should, therefore, be set aside. He also filed an affidavit, signed by one Bhagabat Mohapatra (who was Defendant no 4 and Appellant No. 1) stating that the interests of Sulabha and Jagannath in the disputed property was joint and indivisible with the interests of the other cosharer-landlords. Mr. M.S. Rao on the other hand filed counter-affidavits signed by one Madhusudan Das (Plaintiff No. 2) to the effect that the interests of Jagannath and Sulabha were severable interests. 5. The dates of death of Jagannath and Sulabha, viz., 3rd October, 1952 and 1st August, 1954, were not challenged. It is true at Jagannath died prior to the delivery of judgment by the trial court on the 13th April, 1953, but as the trial ?courts judgment was against the Plaintiffs so far as the interests of the cosharer-landlords were concerned, his death did not materially affect the decision. But the lower appellate courts judgment was against the interests of the cosharer landlords and as two of them, namely Sulabha and Jagannath were both dead prior to the delivery of the judgment of the lower appellate court, the question arises as to whether the appeal abated as a whole, in the, lower appellate court, or else whether the appeal abated only in respect of the interests of these two persons. The answer to this will depend on whether the interest of these persons in the disputed property was joint and indivisible with the interests of the other cosharer-landlords or else whether it was a severable interest. The main facts are all admitted. Defendants 3 to 20 were the eight annas cosharer-landlords of the disputed property. They filed a rent suit (ext. 2) for realisation of their share of the rental, but made the other cosharer-landlords parties to that suit. In the sale certificate (ext. B) eventually obtained by them in execution of the rent decree 801 the said cosharer-landlords were shown as joint purchasers, and there was no specification of their respective shares inter se. The Plaintiffs also did not allege in the plaint that these cosharer-landlords had severable interests of their own; but on the contrary they stated that all of them dispossessed the Plaintiffs from the property by virtue of the rent decree. The Plaintiffs also did not allege in the plaint that these cosharer-landlords had severable interests of their own; but on the contrary they stated that all of them dispossessed the Plaintiffs from the property by virtue of the rent decree. Again, in the memorandum of appeal before the lower appellate court also it was not stated that the interests of the various cosharer-landlords were severable. Under these circumstances the belated affidavit filed by the Respondents in the court cannot be accepted and it must be held that the eight and as cosharer-landlords had joint interest in the property. 6. As two of these cosharer-landlords died before judgment was delivered by the lower appellate Court, it is obvious that the appeal before that court abated as a whole. Otherwise, there would be serious conflict in the decrees. The trial courts judgment to the effect that the decree obtained by the cosharer-landlords was a rent decree and not a money decree would remain, so far as the interests of Sulabha and Jagannath in the property are concerned. But the lower appellate courts judgment to the effect that the said decree was a money decree and not a rent decree would remain so far as the remaining cosharers are concerned. It is with a view to avoid this conflict between the decrees that it has always been held that where the interests of the Defendants are joint and indivisible the omission to substitute the representatives of the deceased Respondents would have the effect of making the appeal abate as a whole. I must therefore hold that the appeal as a whole abated prior to the lower appellate courts decision, and that consequently its judgment must be set aside. 7. Mr. Rao however argued that this point should be left for decision by the lower appellate court and that this Court should merely remand the appeal to that appellate court for re-hearing it on the question of abatement, after giving both parties an opportunity to adduce evidence if necessary. For this purpose he relied on the decision of the Patna High Court reported in Ram Saran v. Prithvinath Singh AIR 195 Pat 267 which is based on a Division Bench decision of the Bombay High Court reported in Amarsingji v. Desai Umed AIR 1925 Bom 20. For this purpose he relied on the decision of the Patna High Court reported in Ram Saran v. Prithvinath Singh AIR 195 Pat 267 which is based on a Division Bench decision of the Bombay High Court reported in Amarsingji v. Desai Umed AIR 1925 Bom 20. In these two decisions it was held that where an appellate court passed its judgment and decree in ignorance of the death of one of the parties and in the second appellate stage an application was filed for setting aside the abatement and allowing substitution of the heirs of the deceased party, the proper course would be to set aside the decision of the appellate court aged send the application to that court for disposal according to law. These decisions, however, will not apply to the present case. Till now no the application has been made for setting aside the abatement so far as interests of Sulabha and Jagannath are concerned and consequently the question of disposal of such an application by the lower appellate court does not arise. Moreover, on this point also the Calcutta High Court in Naba Kumar v. Prafulla Chandra 51 Cal. W.N. 654 has held that the second appellate court is itself competent to hear and dispose the application for setting aside abatement on merits. It is Unnecessary for the purpose of this appeal to decide which of the aforesaid decisions may be preferable. 8. The main question for consideration here is whether the judgment and decree of the lower appellate court can be allowed to stand in view of the facts that have been brought to the notice of the Court and not challenged. The abatement of an appeal against a deceased Respondent takes place by the operation of law and does not depend on the appellate courts being made aware of the death of that person. Hence the appeal when sulabha died on the 1st August, 1954 even though the parties did not informed the lower appellate court about this fact. That court had therefore no jurisdiction to hear and dispose of the appeal. This Court, as the second appellate court is entitled to examine the legality of the judgment of the lower appellate court on facts which are admitted. 9. That court had therefore no jurisdiction to hear and dispose of the appeal. This Court, as the second appellate court is entitled to examine the legality of the judgment of the lower appellate court on facts which are admitted. 9. There may be circumstances when the second appellate court may, on facts very similar to those in the instant case, be justified in remanding the case to the lower appellate court for considering whether the entire appeal abated or else whether it abated only to the extent of the interests of the deceased Respondent. But in my opinion, this is not such a case. I have already shown that in the plaint in the rent suit, as when as in the sale certificate, the interests of the Respondents were it shown as joint and there was no specification of the shares. The Plaintiffs also never alleged, either before the trial court or before the lower appellate court that the cosharer-landlords had made a subsequent partition amongst themselves. Moreover, it is difficult to believe that the Plaintiffs were not aware of the death of the aforesaid two Respondents. The Plaintiffs and the Respondents are all residents of the same village and they must have known about the death of sulabha and Jagannath. Their failure to take steps for substitution o the legal heirs of the deceased Respondents must lead to an adverse inference against them. It was only when the controversy arose in this Court as to whether their interests were severable or not that a belated affidavit was filed by one of them; and, for the reason stated above, it can have no value whatsoever. 10. I would therefore set aside the judgment and decree of the lower appellate court and hold that the appeal before that court abated as a whole, on account of the death of sulabha and Jagannath and on account of the failure to implead their legal representatives according to law. The judgment and decree of the trial court will therefore remain. The appeal is allowed with costs throughout. Final Result : Allowed