JUDGMENT : A. Misra, J. - This appeal has been filed by Defendant Nos. 1 to 4 against a reversing judgment. The facts material for the present purpose are as follows: Respondent Nos. 1 and 2 filed the suit for partition and, allotment of their share in the suit properties after declaring the alienations by Defendant Nos. 4 and 5 in favour of Defendant Nos. 1 to 3 to be invalid and also permit them u/s 4 of the Partition Act to repurchase the interest in the dwelling house transferred in favour of Defendant Nos. 1 to 3. Plaintiffs along with Defendant No. 6 claimed a share of Rs. 10/8 pies, while the balance was alleged to appertain to the share of Defendant Nos. 4 and 5. Defendant Nos. 1 to 4 denied right of the Plaintiffs to be entitled to any relief u/s 4 of the Partition Act among other grounds on which they resisted the suit. 2. The trial Court found that the alienations under Exs. A and B are valid and that Plaintiffs are entitled to Rs. 8/- annas interest in the suit properties, but they are not entitled to the relief u/s 4 of the Partition Act. Accordingly, a preliminary decree was passed. On appeal by the Plaintiffs, the decree of the trial Court was modified to the extent that Plaintiffs would be entitled to the relief u/s 4 of the Partition Act by paying Defendant Nos. 1 and 2 price of the property as determined by the Court in respect of the property appertaining to plot No. 13. Defendant Nos. 1 to 4 have preferred this appeal against the judgment of the lower appellate Court allowing Plaintiffs prayer for relief u/s 4 of the Partition Act. 3. When this appeal was taken up for hearing; learned Counsel for Respondents raised a preliminary point that the appeal as a whole has abated for the following reasons. Appellant Nos. 1 and 2 who were Defendant Nos. 1 and 2 are two brothers and Appellant No. 3 is the son of Appellant No. 1. The relief u/s 4 of the Partition Act was granted jointly against them. During the pendency of this appeal, Appellant, Nos. 1 and 4 died and were not substituted by their legal representatives. Appellant Nos. 1 and 2 who were Defendant Nos. 1 and 2 are two brothers and Appellant No. 3 is the son of Appellant No. 1. The relief u/s 4 of the Partition Act was granted jointly against them. During the pendency of this appeal, Appellant, Nos. 1 and 4 died and were not substituted by their legal representatives. The applications for condoning delay, setting aside abatement and allowing substitution were rejected and an order was passed on 15-5-1970 that the appeal has abated as against Appellant Nos. 1 and 4. It is argued by learned Counsel for Respondents that when the relief u/s 4 of the Partition Act was granted jointly against the Appellants and the decree of the lower appellate Court, so far as Appellant Nos. 1 and 4 is concerned, has become final by virtue of abatement of the appeal as against them, the appeal in its entirety will bate, as otherwise the Possibility of inconsistent decrees cannot be exclused. Learned Counsel for Appellants contended that under Order 41, Rule 4 CPC in suits where there are more than one Plaintiff or more than one Defendant and the decree appealed from proceeds an any ground common to all the Plaintiffs or Defendants, any one of the Plaintiffs or Defendants may prefer an appeal in which the appellate Court is entitled to reverse or vary the decree in favour of an the Plaintiffs or Defendants, as the case maybe. Therefore, even if the deceased Appellant Nos. 1 and 4 has not been substituted, the appeal can be deemed to be one by the remaining Defendants, and the grounds being common, it will be open to the Court to reverse or modify the entire decree, in which case, there will be no apprehension of inconsistent decrees. This question has been set at rest by two decisions of the Supreme Court reported in Rameshwar Prasad v. Shyam Beharilal Jagannath 1963 S.O.D. 945 : I.R. 1963 S.C. 1901, followed in Sri Chand v. Jogadish Pershad Kishan Chanda AIR 1966 S.C. 1427 . In Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others a contention like the one advanced by Appellants was negatived and the legal position explained as follows: No question of the provisions of Order 41, Rule 4 CPC overriding the provisions of Rule 9 of Order 22 arises. In Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others a contention like the one advanced by Appellants was negatived and the legal position explained as follows: No question of the provisions of Order 41, Rule 4 CPC overriding the provisions of Rule 9 of Order 22 arises. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of Order 41 applies to the stage when an appeal is filed and empowers one of the Plaintiffs or Defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the Plaintiffs the provisions of Order 41, Rule 4 became unavailable. Order 22 operates during the pendency of an appeal and not at its institution. If some party dies the pendency of the appeals his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased Appellant abates and does not proceed any further. Their Lordships hold that in such oases where one of the Appellants against a joint decree dies and is not substituted, the appeal abates in its entirety. In the present case, admittedly, the relief u/s 4 was jointly granted against the Appellants and two of them having died and the decree, so far as they are concerned, having become final, the appeal abates as a whole. 4. In the result, the appeal fails and is dismissed with costs. Final Result : Dismissed