By Court. These appellants were the plaintiffs in the suit from which ultimately this Letters Patent Appeal arises. Leave to appeal under clause 10 of the Letters Patent having been granted by the learned single Judge it is directed against the judgment dated 1st February, 1968 of Rajkishore Prasad, J. in second Appeal No.642 of 1965. 2. The appellants had instituted a suit for declaration of title and confirmation in the alternative recovery of possession over 86 decs. of land in plot No. 2227 of Khata No. 328 of village Bajpur Jadid and for a further declaration that the order of the Block Development Officer commuting rent in the suit land in the name of the defendants was illegal. The claim was also based on a declaration that the entry in the Record of Rights had been wrongly made. The trial Court had dismissed the suit. The appellants preferred an appeal which was registered as Title Appeal No. 303/64 of 1961/63 and was finally heard by the 3rd Additional Subordinate Judge, Arrah, who by his judgment and decree dated 10.6.65 allowed the appeal and decreed the suit with costs all through. The possession of the appellants was confirmed on a declaration of their title. The entry in the Record of Rights was held to be wrong. Against the aforesaid judgment and decree of the 1st appellate court respondents in this appeal filed the aforesaid Second Appeal. One of the points taken in the Second Appeal had been that Manik Chamar (appellant No.8 in the second Appeal) had died during the pendency of the appeal in the first appellate Court. As chance would have it, however, on 9.3.67 during the pendency of the second Appeal in this court Ramsurat Chamar, a defendant, who was appellant no.2 in that appeal died. An affidavit was filed to that effect by the plaintiffs (appellants here). On 9.1.1968 a note to that effect was made in the records of the Second Appeal. On 25.1.1968 the Second-Appeal was taken up for hearing when the present appellants raised objection that the Second Appeal had abated as a whole and had become incompetent and therefore, no judgment or decree could be passed by the learned Single Judge. By the impugned judgment the learned Single Judge after setting aside the judgment and decree passed by the first appellate court remanded the case to that Court with certain directions. 3. By the impugned judgment the learned Single Judge after setting aside the judgment and decree passed by the first appellate court remanded the case to that Court with certain directions. 3. In this appeal the only point, which was raised is that the Second Appeal having become incompetent as a whole the learned Single Judge could not, in law pass any order of remand. Before I take up this point it is worthwhile to mention that at one stage a doubt had been raised as to whether the order of the learned Single Judge could be said to be a judgment within the meaning of clause 10 of the Letters Patent and with regard to the maintainability of this appeal. The point is however, settled by two Bench decisions of this Court. In the cases of Tapesar Raut and others Vs. Ram Jutan and others and Jagarnath Ram and another Vs. Thakur Prasad and others it has been held that an order of Single Judge in Second Appeal remanding the case to the appellate Court below for fresh hearing is a judgment within the meaning of clause 10 of the Letters Patent and hence, appealable. It has further been held in the case of Jagarnath Ram (Supra) that if an appeal lies from an order of remand and no appeal is preferred then the correctness of that order cannot be challenged subsequently. There can be, thus, no doubt that the present appeal is maintainable. 4. It was argued by the learned Counsel for the appellants that if there had occurred an abatement in the Second Appeal itself, then if the abatement has not been set aside under Order 22, Rule 9 of the Civil Procedure Code, 1908 the effect of abatement was virtually a decree. It was therefore, argued that the learned Single Judge was far less competent to pass any order in respect of that appeal by setting aside the judgment and decree of the first appellate court and remanding the case to that court. I think there is sufficient force in this contention. As has been held by a Full Bench of this Court in the case of Awadh Bihari Tewari and another Vs. I think there is sufficient force in this contention. As has been held by a Full Bench of this Court in the case of Awadh Bihari Tewari and another Vs. Sudarsan Rai and others the effect of abatement, if it is not set aside under order 22 Rule 9 is virtually a decree and the order of abatement is considered to have determined the rights between the parties and it operates as a decree in favour of the deceased defendants. That decree becomes final as a result of abatement. The Legislature has equated the abatement of a suit with its dismissal so far as the deceased person is concerned. There can, therefore, be no doubt that in so far as Ram Surat Chamar (appellant no. 2 in the Second Appeal) is concerned, the appeal had abated against him. That means a decree in his favour affirming the judgment and decree of the lower appellate Court followed in law, as the abatement occurring on account of his death had not been set aside. If that be so, then the only question that remains to be seen is, as to whether the entire Second Appeal became incompetent or not. As I have already stated earlier, the suit was one for joint decree in favour of the plaintiffs for declaration of their title and confirmation, in the alternative recovery of possession. That had been decreed by the first appellate court. None of the plaintiffs had claimed any specific share in the suit land. The decree being joint and indivisible cannot be dissected to enure to the advantage of some of the decree-holders with the possibility of the decree being set aside with regard to the others. If the decree against the deceased Ram Surat Chamar, one of the defendants became final, any interference with the judgment and decree of the first appellate court would result in the possibility of a conflicting decree. In such circumstances, it has always been held that the entire appeal must be held to have become incompetent. In the case of State of Punjab Vs. Nathu Ram there was a joint award passed by an arbitrator fixing higher compensation. Against that there was an appeal. One of the decree holders died during the pendency of the appeal and no substitution was effected. In the case of State of Punjab Vs. Nathu Ram there was a joint award passed by an arbitrator fixing higher compensation. Against that there was an appeal. One of the decree holders died during the pendency of the appeal and no substitution was effected. It was held by the Supreme Court that the entire appeal was incompetent, because to hold otherwise may in result conflicting decree. Similarly in the case of Ram Sarup Vs. Munshi the same principle was applied. There was a pre-emption suit. The decree was joint one. A part of that decree had become final on account of abatement. The sale was not a sale of any separated item of property in favour of the deceased appellant. The whole appeal was held to have become incompetent on account of abatement. Some of the principles have been, very succinetly, if I may say so with great respect, laid down in Ramagya Pd. Gupta and others Vs Murli Prasad. It has been held that under certain circumstances the appeal may not be proceeded with and is liable to be dismissed. But that is so not because of the procedural defect but because it is part of the substantive law. No exhaustive statement can be made as to the circumstance under which an appeal in such cases cannot proceed. But the courts have applied one or the other of three tests. The Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Courts coming to a decision which be in conflict with the decision between the appellant and the deceased respondent, and therefore, it would lead to the Courts passing a decree which will be contradictory 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. These three tests are not cumulative tests. Even if one of them is satisfied the Court may dismiss the appeal. 5. The instance case is covered by the first test laid down by the Supreme Court. These three tests are not cumulative tests. Even if one of them is satisfied the Court may dismiss the appeal. 5. The instance case is covered by the first test laid down by the Supreme Court. It is no use multiplying decisions of the High Courts in this regard which are all one way in favour of the appellants. It is, therefore, clear that the Second Appeal before the Single Judge had become incompetent on account of it having abated against defendant Ram Surat Chamar, who was appellant no. 2 in the Second Appeal. The learned Single Judge had, therefore, manifestly erred in law in passing the impugned order. This appeal accordingly succeeds and is allowed and the judgment of the learned Single Judge in Second Appeal no. 682 of 1965 is set aside. The suit of the appellants stands decreed. The appellants shall be entitled to their costs throughout. Appeal allowed.