Judgment :- 1. The above petitions are by the respondent in A. S. No. 86 of 1958. The respondent in that appeal was the sole plaintiff in O. S. No. 39 of 1957 of the Subordinate Judge's Court, Thiruvalla. The suit was filed for amounts alleged to be due from defendants 1 and 2 in that suit and others. A preliminary decree was passed for settlement, of accounts against defendants 1 and 2 and others. Though this was called a preliminary decree, the liability of defendants 1 and 2 was also fixed. An appeal, A. S. No. 86 of 1958 was taken by defendants 1 and 2 in the suit. 2. The first defendant the first appellant died on 25th April 1962. An application, C. M. P. No. 6359 of 1962 was then moved by the second defendant-second appellant in A. S. No. 86 of 1958. In that application, after stating that the appellant No.1 had died it was averred that the right to sue had survived to the second appellant. It was therefore prayed that the second appellant be allowed to proceed with the appeal, after the court recorded that the right to sue had survived to the second appellant. The court passed an order 'recorded' on 7th September 1962. On 15th October 1962 I set aside the decree of the trial court and remitted, the case to the trial court on condition the appellants paid a sum of Rs. 250 towards the costs of the respondent. Costs were paid as directed. When the case was being proceeded with in the trial court the second defendant contended that the suit as against the first defendant had abated because the legal representatives of the first defendant had not been impleaded. The plaintiff thereafter moved an application for bringing the legal representatives of the first defendant on record. The court then passed the order sought to be revised in civil revision petition 258 of 1963 and that order is in these terms " Heard. It is submitted that 1st defendant died on 25th April 1962. This application was filed after nearly ten months. The suit abates as against 1st defendant." In the light of the above facts, counsel on behalf of the petitioner has contended that this Court had no appeal before it on 15th October, 1962 when the appeal was disposed of by the remand order which I referred to. This application was filed after nearly ten months. The suit abates as against 1st defendant." In the light of the above facts, counsel on behalf of the petitioner has contended that this Court had no appeal before it on 15th October, 1962 when the appeal was disposed of by the remand order which I referred to. In fact it is urged that this Court had no jurisdiction to proceed with the appeal and it is contended that the order of remand is a nullity. It is prayed in C. M. P. No. 430 of 1964 that this may be so declared. In support of this" position, reference was made to passages from the decisions of the Supreme Court. The first decision referred to is in State of Punjab v. Nathu Ram (A. I. R.1962 S.C. 89). The relevant passage from the judgment reads as follows: "The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the court will do is one to which exception can or cannot be taken." Their Lordships were dealing with a case where one of the respondents had died. But the decree was a joint decree and the decree proceeded on a ground common to all the respondents. In these circumstances, it was said that the appeal cannot be proceeded with. I may further state here that the decree under appeal in A. S. No. 86 of 1958 was also a joint decree and proceeded on a ground common to the appellants-defendants 1 and 2 as well as other defendants and this is admitted. The principle of the decision in State of Punjab v. Nathu Ram (A. I. R.1962 S.C. 89) must therefore apply. 3. The principle of the decision in State of Punjab v. Nathu Ram (A. I. R.1962 S.C. 89) must therefore apply. 3. A specific case of the effect of the death of one of the appellants who had a distinct share was also considered by the Supreme Court in the decision in Rameshwar Prasad and others v. Shambehari Lal Jagannath and another (A.LR.1963 S.C.1901) and therein also Their Lordships laid down the rule that the effect of the death of one of the appellants is that the whole appeal abated. It is not necessary to multiply more decisions. But it may be taken to be well-established that in cases where a judgment proceeded on a basis common to all the appellants, the death of one of the appellants, even if it be that he had a distinct interest, is that the whole appeal would abate. I must therefore conclude that the appeal A. S. No. 86 of 1958 had abated on 25th July 1962. When the order 'recorded' was passed on 7th September 1962, there was no appeal and so it was when I passed the order of remand on 15th October 1962. 4. I do not think that the order 'recorded' passed on 7th September 1962 makes any difference. This order was passed in accordance with R.2 of Order XXII of the Civil Procedure Code which runs thus: "2. Procedure where one of several plaintiffs or defendants dies and right to sue survives. Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants." The order 'recorded' passed under R.2 of Order XXII does not determine the rights of the parties. The R.2 of Order XXII is only an enabling provision permitting the court to proceed with the appeal in certain circumstances. I do not think that the court had to determine finally any matter in a manner that will be binding on the parties before proceeding with the appeal. The R.2 of Order XXII is only an enabling provision permitting the court to proceed with the appeal in certain circumstances. I do not think that the court had to determine finally any matter in a manner that will be binding on the parties before proceeding with the appeal. It appears to me that it is the principle of the decision of the Supreme Court in Arjun Singh v. Mohindra Kumar and others (A. I. R.1964 S.C. 993) that must apply in relation to an order 'recorded' passed under R.2 of Order XXII. This cannot form res judicata. Nor can such an order afford a basis for the plea of estoppel as against the respondent to the appeal who though he had notice of the statement that the right to sue had survived to the surviving appellant did not demur. I must ignore the order 'recorded' passed on 7th September 1962. The conclusion is therefore inevitable that the order of remand was passed without competence. 5. The further argument of counsel on behalf of the second appellant remaining to be considered is that the respondent to the appeal had taken advantage of the beneficial portion of the order of remand and so cannot now seek the declaration that it is a nullity or it is ineffective. Reliance was placed by counsel on the decision of the Madhya Pradesh High Court in Bhagirath Bilgaiya v. Rishabh Kumar and others (A. I. R.1964 M.P.1). That was a case where the plaintiff having obtained the benefit of an order passed under R.13 of Order IX attempted to question that order. The court ruled that he is precluded from doing so. Applying this principle, it is urged that the order of remand was passed on condition that the appellants paid the costs of the respondent fixed at Rs. 250. That amount was paid by the second appellant and it had been received by the respondent to the appeal the petitioner in C.M.P. No. 430 of 1964. In these circumstances, he should not be allowed to urge that the order of remand should not have been passed. This Court could not have dealt with the appeal at all. In fact there was no appeal to be heard. The order passed is therefore without jurisdiction. The order of remand is ineffective. That order, and no part of it, cannot form the basis of any estoppel. This Court could not have dealt with the appeal at all. In fact there was no appeal to be heard. The order passed is therefore without jurisdiction. The order of remand is ineffective. That order, and no part of it, cannot form the basis of any estoppel. The decision reported in Bhagirath Bilgaiya v. Rishabh Kumar (A. I. R.1964 M.P. I) is not applicable. 6. The only point remaining to be considered is the contention raised by counsel for the second appellant that the respondent to the appeal having prevented the second appellant from applying for setting aside the abatement and from applying for excusing the delay by not opposing C. M. P. No. 6359/62 should not be permitted to invoke the inherent jurisdiction of this Court. Till the matter has been clarified by the Supreme Court by its decision reported in Rameshwar Prasad v. Shambehari Lal Jagannath (A. I. R.1963 S.C.1901) a number of High Courts, as rightly pointed out by counsel for the second appellant, a very large number of them, had taken the view that the rule was that the surviving appellant could continue to prosecute the appeal. This being so, it appears to me that the second appellant as well as the respondent proceeded on the bonafide belief that the appeal could be proceeded with. This mutual mistake cannot give rise to any estoppel. 7. In the light of the above, two conclusions emerge: (a) There was no appeal on 15th October 1962 and therefore the order of remand was incompetent, (b) The suit had not abated as against the first defendant as stated by the Subordinate Court in the order which is sought to be revised in C. R. P. No. 253. 8. I therefore declare and I think that is the correct procedure to adopt, see the rulings in Cheladina Venkata Ram Rao v. Engu Narayana and others (A. I. R.1963 A.P. 168), Jhenak Singh and another v. Ambika Prasad and others (A. I. R.1923 All. 414) and Mt. Surji v. Manki Ram (A. I. R.1951 All. 381) that the appeal A. S. No. 86 of 1958 had abated and that this Court was incompetent to deal with the appeal on 15th October 1962 and I therefore cancel the order of remand dated 15th October 1962. 9. 414) and Mt. Surji v. Manki Ram (A. I. R.1951 All. 381) that the appeal A. S. No. 86 of 1958 had abated and that this Court was incompetent to deal with the appeal on 15th October 1962 and I therefore cancel the order of remand dated 15th October 1962. 9. I also set aside the order sought to be revised in C. R. P. No. 258 and allow the civil revision petition. 10. This will not prevent the second appellant from applying for setting aside the abatement of the appeal. If any application for that purpose is made that will have to be dealt with on the merits. 11. I direct that the petitioner in C. M. P. No. 430 must pay back Rs. 250 which he had received pursuant to the order of remand to the second appellant within three weeks from to-day. 12. C. M. P. No. 430 of 1964 and C. R. P. No. 258 of 1963 are disposed of on the above terms. There will be no order as to costs.