Judgment Narasimham, J. 1. This is an appeal by defendants 1, 4, 9 and 10 against the judgment of Rajkishore Prasad, J. holding that First Appeal No. 199 of 1956 abated as a whole and became incompetent because due to the laches of these appellants the appeal stood dismissed as against defendants 5, 6, 7, 8, 11 and 12 in consequence of a peremptory order 2. To appreciate the points in controversy, it is necessary to state the following facts. Defendants 11 and 12 (described as defendants fourth party) were the previous owners of the disputed properties. They sold the same to the plaintiffs father by a registered sale deed dated the 13th August, 1948. Subsequently, sometime in 1949, they purported to sell separate parcels of the said lands by separate sale deeds in favour of defendants 1 to 10. There was the usual proceeding under Sections 144 and 145 of the Code of Criminal Procedure between the plaintiffs and some of the defendants in respect of some of the properties and it appears that the lands were attached under Sec.146, Criminal Procedure Code. The plaintiffs suit was, therefore, for declaration of title, recovery of possession and mesne profits and also for a decree for a sum of Rs. 2.165 representing the amount in deposit being the net usufruct from the lands which were under attachment in the proceeding under Sec.146 Criminal Procedure Code. One of the main issues in that litigation was whether the sale deed dated 13-8-1948 executed by defendants fourth party in favour of the plaintiffs father was valid, genuine and for consideration (issue No. 5) This issue was decided in favour of the plaintiffs and hence a decree was passed for recovery of possession and also for mesne profits. They were also authorised to withdraw the sum of Rs. 2.165 deposited in the Criminal Courts at Buxar and total costs to the extent of Rs. 957/- were decreed in favour of the plaintiffs to be paid by the contesting defendants. During the pendency of the appeal, however, due to the failure of the present appellants to comply with the peremptory order dated 13-12-1956 the appeal stood dismissed as against the non-appearing respondents 5 to 10 corresponding to defendants 5, 6, 7, 8, 11 and 12. 3. During the pendency of the appeal, however, due to the failure of the present appellants to comply with the peremptory order dated 13-12-1956 the appeal stood dismissed as against the non-appearing respondents 5 to 10 corresponding to defendants 5, 6, 7, 8, 11 and 12. 3. Before the learned Single Judge, a preliminary objection was taken Io the maintainability of the appeal on the ground that in the absence of those defendants the decree passed by the trial court could not be varied and that consequently the appeal must be held to have abated as a whole and to have become incompetent. This argument was accepted by the learned Single Judge. 4. The learned Single Judge has referred to several previous decisions on the subject, but the law has been laid down by a recent judgment of the Supreme Court in State of Punjab V/s. Nathu Ram, AIR 1962 SC 89 and it is therefore unnecessary to refer to the earlier decisions. The question is strictly not one of abatement but whether the appeal is competent as being properly framed in the absence of a necessary party. Various tests have been laid down by their Lordships for the decision of this question and an exhaustive statement is obviously not possible as it would vary according to the circumstances of each case. But one of the main test laid down by their Lordships is that if the success of the appeal may lead to the Court coming to a decision which would he in conflict with the decision between the appellant and the deceased respondent there the non-impleaded respondents) and, therefore, would lead to the court passing a decree which would he contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent, the appeal must be held to have failed as a whole. But in that ease itself it was pointed out that the decree was a joint decree obtained by two brothers against the State of Punjab. One of the brothers died and his legal representatives were not substituted during the pendents of the appeal. As pointed out by their Lordships, if there is a decree in favour of the deceased respondent, or non-appearing respondent, no decree contradictory to the same can be passed in the appeal where the other parties alone are present. One of the brothers died and his legal representatives were not substituted during the pendents of the appeal. As pointed out by their Lordships, if there is a decree in favour of the deceased respondent, or non-appearing respondent, no decree contradictory to the same can be passed in the appeal where the other parties alone are present. Here, however, as between the contesting appellants and defendants 5, 6, 7, 8, 11 and 12 there was no conflict at any stage of the litigation. They were all co-defendants having a common interest. The persons who got the decree are the plaintiffs. Even if that decree is varied so far as the interest of the present appellants are concerned, that will not in any way adversely affect the interest of the non-impleaded defendants. It was admitted in the plaint itself that the defendants obtained separate sale deeds in respect of separate portions of the disputed properly and were claiming possession of the same. Their interest in respect of the disputed property was, therefore, not joint but severable. The plaintiffs could easily have brought separate suits against the various defendants and asked for hearing them analogously as one of the main issues, namely, the genuineness of the sate deed executed in favour of the plaintiffs father, was common to all the suits. Instead of adopting this course, the plaintiffs brought one suit and impleaded all the defdts. as parties. If some of the defendants against whom the decree was passed by the lower court did not care to tile an appeal, the decree will be final and conclusive so far as their interest is concerned. But there seems to be no reason why when the interest of the defendants are severable some of the defendants against whom the decree is passed should not be permitted to continue the appeal even though the remaining defendants were not impleaded as parties due to several causes. The Supreme Court decision deals with the case of a joint decree where the interest of the decree-holders was not separate of severable. Here, however, the position is just the opposite. 5. Mr. Kanhaiyaji, however, pointed out that so far as costs are concerned, there is a joint decree in favour of all the defendants and, similarly, so far as the recovery of the sum of Rs. Here, however, the position is just the opposite. 5. Mr. Kanhaiyaji, however, pointed out that so far as costs are concerned, there is a joint decree in favour of all the defendants and, similarly, so far as the recovery of the sum of Rs. 2,165 representing the past usufruct of the property under attachment is concerned, there is a joint decree and it will be impossible to separate the interest of the various defendants in respect of these amounts Here, however, the question for consideration is whether even if the appellants succeed in this appeal there will be any variation of this portion of the decree to the detriment of the non-appearing defdts. In my opinion, even if there is variation it will be in their favour and not against their interest. If the appellants succeed the cost payable by the non-appearing defendants, as against whom the third court judgment is final, may be proportionately reduced. This will be a variation in their favour. Similarly, if the appellants succeed and them is a proportionate reduction in the amount payable to the plaintiffs out of the money in deposit in Buxar Treasury, the non-appearing defendants cannot make a grievance of the same because they have lost title to the properly and they have no claim whatsoever to the money lying in deposit. In this connection I might refer to the Full Bench decision of this Court in Mt. Parwati Kuer V/s. Manna Lal Khetan, AIR 1956 Pat 414 where on a construction of Order 41, Rule 4 read with Order 41, Rule 38 it was held that a decree may be varied even in the absence of some of the parties so long as it is not varied to their disadvantage. 6. Our attention was invited to the case of Ram Samp V/s. Munshi, AIR 1968 SC 553 where also at pp. 556 and 557 it was pointed out that "where a decree is a joint one and a part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated". But their Lordships took came to point out. 556 and 557 it was pointed out that "where a decree is a joint one and a part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated". But their Lordships took came to point out. "It is therefore not a case of a sale of any separated item of property in favour of the deceased-appellant but of one entire set of properties to be enjoyed by two sets of vendees in equal shares" This observation shows that where the claim is based on sale of separated items of property, as in this case, the aforesaid principle may not apply. 7. For these reasons, I would allow the appeal, set aside the judgment and decree of the learned Single Judge and direct that First Appeal No. 199 of 1956 be restored to file and disposed of on merits. Both parties will bear their own costs of this appeal. S.P.Singh, J. 8 I agree.