JUDGMENT Subramonian Poti, J. 1. Learned counsel for the second respondent raises a preliminary objection and that is about the sustainability of this appeal when one of the appellants is found to have died during the pendency of the appeal and the appeal has abated as against him. The defendants in a suit for declaration of title, having failed in their contention as to absence of title in the plaintiffs and also bar of limitation for the suit, have filed this Second Appeal. During the pendency of the appeal 4th appellant died and his legal representatives have not been impleaded. Whether the appeal could be disposed of on the merits, nevertheless, is the question raised here. 2. It is true that one or more of the defendants could have filed an appeal to this Court against the decree of the court below and the variation or reversal in appeal would have enured to the benefit of the non-appealing defendants also. This is by reason of the provision in Order 41 rule 4 which reads as follows: "One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the ease may be." But where all the defendants appeal from the whole decree, which decree proceeds on a ground common to all the defendants, is the Appellate Court competent to vary or reverse the decree in favour of all the defendants, when, during the pendency of the appeal, the appeal abates as against one of the defendants? Order 41 rule 4 is in terms applicable only to where appeal is by some only of the plaintiffs or defendants in the suit and not all of them. If all of those plaintiffs or defendants, in regard to whom the decree appealed from proceeds on any common ground, join in filing the appeal Order 41 rule 4 has no application. If all of those plaintiffs or defendants, in regard to whom the decree appealed from proceeds on any common ground, join in filing the appeal Order 41 rule 4 has no application. If in such a suit one of the appellants dies during the pendency of the appeal and the appeal abates for failure to implead the legal representatives in time, then Order 22 rule 9 would operate against such appellant. The abatement of the appeal would operate as a decision in the appeal in favour of the successful party in the court below as against those claiming under the deceased appellant. If, at the instance of the surviving appellants, the decree of the lower court is varied or reversed that would amount to conflicting decisions in the same appeal in regard to the different parties against whom the court, whose decree is appealed against, proceeds on a common ground. That would not be permissible. Hence in such a case, the court will have to hold that abatement as against one party would preclude the decision of the appeal on the merits at the instance of the surviving appellants. 3. The Supreme Court in the decision in State of Punjab v. Nathu Ram A.I.R. 1962 S.C. 89 has laid down the rule thus: "It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which would be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed."� 4. The rule indicated in the case that was before the Supreme Court in Rameshwar Prasad v. Shambehari Lal A.I.R. 1963 S.C. 1901 is directly applicable to the facts of this case. In that case, during the pendency of an appeal one of the nine plaintiffs-appellants, Kedar Nath, died. His legal representatives were not brought on record and the appeal abated as against him. The question that arose was whether the appeal could be continued notwithstanding that abatement and whether relief could be granted to the surviving appellants. It was urged in that case that the surviving appellants could have instituted the appeal against the entire decree in view of the provisions of Order 41 rule 4 of the Code of Civil Procedure and therefore they were competent to continue the appeal even after the death of Kedar Nath and after the abatement of the appeal as against him. It was urged in that case that even if one of the plaintiffs had filed the appeal it could have enured the benefit of the other appellants and if so there was nothing to prevent the court from varying the decree in appeal notwithstanding the abatement as against one of the appellants, as the other appellants survived to prosecute the appeal. The Supreme Court did not agree with this contention and referring to Order 41 rule 4 the court said thus: "These provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire decree. The Supreme Court did not agree with this contention and referring to Order 41 rule 4 the court said thus: "These provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire decree. The second appeal filed in the High Court was not filed by any one or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and, therefore, was not an appeal to which the provisions of rule 4 of Order 41 could apply." As to the principle underlying Rule 4, the Court said: "Further, the principle behind the provisions of rule 4 seems to be that any one of the plaintiffs or defendants, in filing such an appeal, represents all the other non-appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them." The Court held that Kedar Nath's appeal had abated and the decree in favour of the respondents had become final against his legal representatives and it concluded: "It will be against the scheme of the Code to hold that rule 4 of Order 41 empowered the Court to pass a decree in favour of the legal representatives of the deceased Kedar Nath on hearing an appeal by the surviving appellants even though the decree against him has become final." 5. The position where one or more of the plaintiffs or defendants challenge the decree of the court below which proceeds on grounds common to them all, by filing an appeal making the other non-appealing plaintiffs or defendants, as the case may be, respondents in the appeal is different. If in such a case one of the non-appealing plaintiffs or defendants, as the case may be, who is made respondent in the appeal dies and the appeal abates as against him, notwithstanding such abatement, the appellants could continue the appeal and the decision in such appeal would entire to "the benefit of not only the appellants but also to the legal representatives of the deceased non-appealing plaintiffs or defendants, as the case may be, who were made respondents in the appeal. That is, because, the appeal is one constituted under Order 41 rule 4 of the Code of Civil Procedure as for the benefit of the non-appealing plaintiffs or defendants, as the case may be. That, this is the position, has been held by the decision in Ratan Lai Shah v. Firm Lalmandas Chhadammalal and Anr. 1969 (1) S.C. W.R. 978. The essential distinction between a case of abatement by death of one of the plaintiffs or defendants where all the plaintiffs or defendants are appellants and a case where all of them are parties but some only as respondents, and the appeal abates as against one of such respondents has been considered by the Supreme Court in Mahabir Prasad v. Jage Ram and Ors.1971 (1) S.C. W.R. 143. That, in a case where all the plaintiffs or defendants are not appellants in the appeal and those who are not appellants are made respondents to the appeal, if, one of such respondents dies and the appeal abates as against him there is no bar against the appellants continuing the suit for the benefit of all the plaintiffs or defendants, as the case may be, is what has been held in that decision. That would be different from a case where all the plaintiffs or defendants are appellants and one of them dies. The essential distinction is based upon the language of Order 41 rule 4 and nothing more. But for that rule the position would not be different in the two cases. 6. Summing up: In a suit there maybe several plaintiffs and defendents. The decree of the court may proceed on any ground common to all the plaintiffs or all the defendants. In such a case any one of the plaintiffs or defendants may appeal from the whole decree. He may make the other non-appealing plaintiffs or defendants, as the case may be, respondents to the appeal or he may not take them parties at all. In either case in the appeal the appellate court is competent to reverse or vary the decree in favour of the appealing or non-appealing plaintiffs or defendants, as the case may be. Even if one of the non-appealing plaintiffs or defendants dies that does not in any way bar the appellate court from varying or reversing the decree in favour of all the plaintiffs or defendants as the case may be. Even if one of the non-appealing plaintiffs or defendants dies that does not in any way bar the appellate court from varying or reversing the decree in favour of all the plaintiffs or defendants as the case may be. That will not be the case where all the plaintiffs or defendants, as the case may be, have jointly filed the appeal. In such a case on the death of any one or more of the appellants, the surviving appellants cannot seek to obtain a decree reversing or varying the decree in favour of all the plaintiffs or defendants, as the case may be. It would also follow that if there cannot be a decree varying the decree in its entirety the surviving appellants cannot obtain a decree for themselves in the appeal reversing or modifying the decree of the lower court. That is, because, it would then mean a different decision in their favour in the appeal than the one reached or deemed to have been reached in regard to the appellant as against whom the appeal abates. It would lead to conflicting decisions. In view of what I have stated above, I, have to hold that by reason of the death of the 4th appellant and the abatement of the appeal as against him, it is not open to the appellate court to enter into the merits of the appeal. The Second Appeal is, therefore, dismissed; but in the circumstances, without costs.