VENKATACHALIAH, J. ( 1 ) THE principal question that arises in this civil revision petition is whether the dismissal of an appeal as having abated consequent upon the legal representatives of one of the respondents therein not having been brought on record amounts to a "decree passed in appeal" within the meaning of S. ICO of CPC admitting of second appeal to this Court and whether a revision petition under S. 115 of the Code is not maintainable,. This matter has come up before us upon a reference by Srinivasa Iyengar, J. , as in his Lordship's view there is conflict of judicial opinion between two pronoucements of this Court in Vishnumoorthi Bhagwatha v. Rudra Shedthi ( (1973) 2 Kar. L. J. 395.) and Mangala Bai v. Sayyad Fakir ( (1975) 2 Kar. L. J, 140. ). ( 2 ) FACTS necessary for the disposal of this civil revision petition, briefly stated, are: sripathi Venkataramana Hegde, first respondent in this civil revision petition, instituted O. S. 13 of 1970 on the file of the Civil Judge, North kanara. against a firm of partners carrying on business under the name and style "m/s. Kanji Moorarji" for recovery of a sum of Rs. 12,324-73 with costs, current and future interest. The said firm is the first petitioner herein. Petitioners 2 to 8 herein were defendants 7, 3, 4, 5, 6, 8 and 9 respectively in the suit. These defendants, along with one Vallabhadas Vasanji, defendant-2 in the suit were impleaded in the suit on the allegation that they were partners of the first-respondent firm. The suit ended in a decree. Against the said decree, only two defendants viz. , Defendants 1 and 7 preferred an appeal before the District Court, North Kanara, in R. A. No. 256 of 1973. Plaintiff was respondent-1 in the said appeal, respondents 2 to 8 therein being the other defendants who did not join in the filing of the appeal and arrayed as respondents. During the pendency of R. A. 256 of 1973, Vallabhadas Vasanji, who was defendant-2 in the suit and respodent-2 in that appeal, died. Plaintiff was respondent-1 in the said appeal, respondents 2 to 8 therein being the other defendants who did not join in the filing of the appeal and arrayed as respondents. During the pendency of R. A. 256 of 1973, Vallabhadas Vasanji, who was defendant-2 in the suit and respodent-2 in that appeal, died. Thereafter Sripati Venkaitairamana Hegde, plaintiff who- was respondant-1 in the; appeal, made an application, I. A. II, in the appellate court urging that the legal representatives of the said Valla- bhadas Vasanji, respondent-2 in the appeal not haying been brought on, record ,the appeal against him sjtood abated; that in the, circumstances, the court could not a (lso proceed with the appeal as against the other respondent also as such a course might result in a conflict of decisions, and that therefore the entire appeal as against all the respondents should be dismissed. The appellant court accepted this contention and allowed I. A. II by its order dated 18-9-1974; in consequence, the appeal came to be dismissed. In this civil revision petition all the original defendants-except, of course, defendant no. 2 who died during the pendency of the appeal-challenge the correctness of the order of the appellate court on I. A. II and the consequent dismissal of the appeal. ( 3 ) WE have heard Sri. T. S. Ramachandra, learned counsel for the petitioners and Sri K. I. Bhatta, learned, counsel for the respondent. On the contentions urged before us in this revision petition, the two questions that fall for determination, are:- (a) Whether, as contended by the respondent, this revision petition is not maintainable inasmuch as, the dismissal of R. A. 256/73 on the ground that the said appeal had abated is a "decision in appeal' within the meaning of S. 100 CPC admitting of a second appeal; and (b) If the revision petition is maintainable, whether the, order ur der revision calls for interference and requires to be set-aside in excucise of the powers of this Court Under S. 115 CPC. ( 4 ) POINT (a): learned counsel on both sides called our attention to a number of decided cases of the various High Courts in support of their respective cotensions. Learned counsiel pointed out that there is an apparent conflict of opinion between the view expressed by this Court in Vishnumoortinumoorhi Bhagwatha's case (1) and Mangala Bai's Case. ( 4 ) POINT (a): learned counsel on both sides called our attention to a number of decided cases of the various High Courts in support of their respective cotensions. Learned counsiel pointed out that there is an apparent conflict of opinion between the view expressed by this Court in Vishnumoortinumoorhi Bhagwatha's case (1) and Mangala Bai's Case. (2) In the former case, Malimath j. , referred to the principle tha,t where the suit was dismissed for wantof necesary parties to the suit, such a decision amounts to a, decree, as it fi ally determines the rights of the, parties and that such a, decree would be appealable under S. 96 C. P. C. and held that a case of dismissal of a suit where the suit abates as against one of the defendants and the right to such does not survive in favour of the remaining defendants was, in principle, in no different position. The remedy of the aggrieved party in such a case, it was held, was to prefer an appeal against the decision of the trial court under S. 96 C. P. C. In the latter case, one of us (Jagannatha Shetty, J.) dealing with the question whether the dismissal of a regular appeal by a Civi judge on the ground that the appeal had abated consequent on the failure of the appellants to bring on record the legal representatives of a deceased respondent does or does not amount to a "decree made in appeal" within the meaning of S. 100 CPC', answered the poser in the negative and held that no second appeal under S. 100 CPC would be maintainable. Sustenance to this view was sought from the decision of the Supreme Court in 5. Kalavati v. Durga Prasad (3 ). In Vishnumoorthi Bhagwatha's Case (1), the court was dealing with the dismissal of a suit as a sequel to its abatement as against one of the de fendants therein and the question that arose for determination was whether such a dismissal was a, decree passed by a "court exercising original jurisdiction " within the meaning of a 96 CPC. The court held that there was a decree of dismissal which clearly attracted the provisions of S. 96 CPC. The court held that there was a decree of dismissal which clearly attracted the provisions of S. 96 CPC. It may be relevant to notice here the distinction in the language of S. 96 of s. 100 and of S. 109 CPC (as it stood before the amendment ). While S. 96 cpc provides that "an appeal shall lie from every decree passed by any court exercising original jurisdiction," S. 100, on the other hand, provides that "an appeal shall lie to the High Court from every decree parsed in appeal by any Court subordinate to the High Court, ----" subject to certain conditions. S. 109, as it then stood, provided, inter-alia, that "an appeal shall lie to the Supreme Court from any Judgment, decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction. " The expressions "decree passed in appeal" occurring in S. 100 CPC and "decree parsed on appeal" obtaining in S. 109 amount in our opinion to much the same, thing. There is, however, a noticeable distinction between the language of S. 96 providing for a first appeal and those of S. 100 and 109 respectively providing for further appeals. In Kalavati's Case, (3) the Supreme Court had had occasion to deal with what constitutes a "dec'ree passed, on appeal" though, however, the matter assumed particularity in that case in the context of a preliminary objection as to the validity of a certificate of fitness for the appeal granted under Art. 133 (1) (a) (as it then stood) by the Allahabad High Court after dismissing a writ petition in which an order made in revision by the deputy Director of Consolidation ha,d been challenged. One of the questions that arose for consideration in that context was whether the dismissal of the writ petition, in limine, was or was not an order of affirmance of the order impugned therein. It was urged before the Supreme Court in support of the validity of the certificate that in so dismissing the petition the High court did not go into the merits of the case and accordingly the order was not one of afffrmance. It was urged before the Supreme Court in support of the validity of the certificate that in so dismissing the petition the High court did not go into the merits of the case and accordingly the order was not one of afffrmance. The Supreme, Court held that such dismissal, in limine was not a final order in civil proceeding for the purpose of Art. 133 (1) (a) of the Constitution and was not, therefore, a judgment of affirmance under Article 133 (1) (a ). Consequently the certificate granted by the High Court was held to be competent. In the course of its judgment, the Supreme Court, dealing with the question as to what amounts to "decicision in appeal," referred to with approval the observations of the Privy council in Abdul Majid v. Jawahir Lal ( (1914) ILR 36 AH. 350 PC.) to the effect that an order dismissing an appeal for want of prosecution did not deal judicially with the matter and could in no sense be regarded as an order adopting or confirming the decision appealed from and that such an order merely recognised authoritatively that the appellant had not complied with the condition under which the appeal was open to him and that therefore he was in the same position a,s if he had not appealed at all. The Supreme Court also referred to, with approval, certain observations in Karsondas Dhardmsey v. Gangabai ( (1907) ILR 32 Bom. 108.) where the question that arose was whether an order refusing to admit an appeal after the period of limitation was a 'decree passed on 'appeal' by the High Court. The observations of the Bombay High Court were to the following effect:"the meaning of the expression 'passed on appeal' has been settled by a line of authorities, which it is right that we should follow: See Sunder Koer v. Chandishwar Prasad Singh (1903) ilr 30 Cal 679) and, the cases there cited. And applying that interpretation to the circumstances of the case, it cannot (in my opinion) be said that there is here a decree passed on appeal by a High Court. "the Supreme Court also referred to the decision of the Madras Right Court in Ramaswami Udayar v. Sevu Aru Ramanathan Chettiar ( AIR 1942 Mad. And applying that interpretation to the circumstances of the case, it cannot (in my opinion) be said that there is here a decree passed on appeal by a High Court. "the Supreme Court also referred to the decision of the Madras Right Court in Ramaswami Udayar v. Sevu Aru Ramanathan Chettiar ( AIR 1942 Mad. 357 .) in which a division Bench of that Court held that whore an application for deducting the time taken in prosecuting other proceedings was dismissed the order was not an order on appeal within the meaning of S. 109 (a) of the Code of Civil Procedure (as it thqn stood ). After referring to with approval to the observation in Gulabchand v. Kudidal (AIR 1952 MB 149.) to the effect that an order dismissing an appeal on the ground that no appeal lay was inot an order which affirmed the decision of the Court-below inasmuch as, the concept of affirmance by the appellate court implied that the appellate, court had dealt judicially with the decision of the court below and upheld it, the Supreme Court, in conclusion, observed:"the principle behind the majortiy of the decisions is thus to the effect that where an appeal is dismissed on the preliminary ground that it was not competent or for non-prose|cution or for any other reason the appeal is not entertained, the decision cannot be said to be a, "decision on appeal" nor of affirmance. It is only where the appeal is heard and the judgment delivered thereafter the judgment can be said to be a judgment of affirmance," (Underlining is ours) ( 5 ) IN the present case, Sri. T. S. Rama,chandra, relying upon the above observations urged that where an appeal is dismissed on a prelimnary ground or for non-prosecution or "for any other reason the appeal is not entertained", the order in that behalf would not amount to a decision on appeal. In the present case, the argument proceeds, an order holding that the appeal could not be proceeded with against other respondents on account of the non-bringing of the legal representatives of a deceased respondent would clearly fall within what the Supreme Court enunciated as not amounting to an order 'on appeal. In the present case, the argument proceeds, an order holding that the appeal could not be proceeded with against other respondents on account of the non-bringing of the legal representatives of a deceased respondent would clearly fall within what the Supreme Court enunciated as not amounting to an order 'on appeal. ' It was urged that where such an order is made the, appellate court cannot be said to have 'entertained, the appeal or be regarded as haying adopted or affirmed the decision appealed from. None of these cases were cases where an appeal had come to be dismissed, on the ground that it had abated as against one of the respondents and consequently, haying regard to the circumstances of the case, the appeal could not be allowed to be proceeded with as against the other respondents as well. ( 6 ) WE may here notice some, of the decisions where propositions similar to the one arising in the present case were considered. The first is the decision of the Privy Council in Abdulla Asghar Ali v. Ganesh Das Vig (AIR 1933 PC 68.) where the dismissal of an appeal on the ground, that the appeal had abated, was held to amount to a, final decree or order of the appellate court within the meaning of Art. 182 (2) of the Limitation act (1908 Act) for the purpose of computation of the period of limitation prescribed by that Article. The facts in that case were that on 17th November 1920 a decree was passed in favour of one Ganesh Das Vig against which both the parties appealed to the Court of the Judicial Commissioner in Baluchistan. On 30th July 1923, the judgment-creditor died. His widow was brought on record in his appeal but not in that of the judgment-debtor. On 12th May 1924 the widow also died; but no further substitution was made in either appeal. Upon an application moved by the representatives of the judgment-creditor that the appeal had Abated, the Judicial Commissioner made, on, 18th October 1924, an order holding that both the appeals had abated. Thereafter representatives of the judgment-creditor sought to put the decree into execution relying-for the purposes, of reckoning the starting point few limitation under Art 182 (2)-on the date 18th october 1924, on which the appellate) order was made. Thereafter representatives of the judgment-creditor sought to put the decree into execution relying-for the purposes, of reckoning the starting point few limitation under Art 182 (2)-on the date 18th october 1924, on which the appellate) order was made. The judgment- debtors contended that the order of 18th October 1924 was not an order on appeal and could not be availed of for the purpose of providing time. The point for determination before the Privy Council was, therefore, whether the order of 18th October 1924 was an ordar of the appelate court and whether it did deal judicially with the matters before it. The Judicial Committee referred to its earlier decisions in Batuk Nath v. Munni Dei (AIR 1914 PC 65.) and abdul Majid v. Jawahar Lal (AIR 1914 PC. 66) and distinguished them. Speaking for the Committee, Sir George Lowndes, observed:"in the case now before their Lordships it is manifest that there was an order of the Appellate Court, and that it did deal judicially with the matters before it. The Judicial Commissioner considered the judgment -debtor's contention that his appeal had not abated, and held that it had. He considered the prayer for revival of the arbitration and refused it. He rejected the application to set aside the abatement. Whether the order made was right or wrong is immaterial: there was no appeal against it, and it was in the circumstances clearly final. Their lordships think that when an order is judicially made by the Appellate court, which has the effect of finally disposing of an appeal, such an order gives a, new starting point for the period of limitation prescribed by Art. 182 (2) of the Act of 1908. They recognise that there has been some difference of opinion upon this question in Indian Courts, but they think that the principle enunciated above is in accordance with the view taken in the majority of cases and is the effect of the decision reported in Gohur Bipari v. Ram Krishna (AIR 1927 Cal. 760 = 104 IC 566) on which both courts have relied in the present proceedings. "this pronouncement has beem followed by a Division Bench of the Lahore high Court in Chuni Lal Tulsi Ram v. Amin Chand (AIR 1933 Lah, 690. ). Again in Nathi bai v. Suraj Narain ( AIR 1966 Raj. 760 = 104 IC 566) on which both courts have relied in the present proceedings. "this pronouncement has beem followed by a Division Bench of the Lahore high Court in Chuni Lal Tulsi Ram v. Amin Chand (AIR 1933 Lah, 690. ). Again in Nathi bai v. Suraj Narain ( AIR 1966 Raj. 159 ), the Rajasthan High Court dealing with a similar situation followed the decision in Abdulla Asghar Ali's (8) case and held:" (8) It is thus incontrovertible that an order of abatement is a judicial order and is entirely unlike the kind of order which engaged the attention of the Privy Council in Abdul Majid's case, AIR 1914 PC 66. There can also be no doubt that this was a final order which had the effect of terminating the appeal once and for all. (9) Now, if an order is a, judicial order and, also a final order putting an end to the appeal, it seems to us that if it is not an order which sets aside or varies or modifies the decision of the court below, it cannot but be accepted as affirming it. To our mind, no other conclusion is fairly possible, arid that being so, we are definitely disposed to hold tha,t the decision of this Court dismissing the appeal- in the circumstances mentioned by us above was one of affirmance and no other. . . . . "according to this view, where the Court after dealing with the contention of the parties that the appeal had not abated, holds that it had, such sp. order must be held to be an order on appeal, This set of cases support the view convassed for the respondent. However, after the pronouncement of the Supreme Court in Kalavati's (3) case, it must be taken to be settled that a "decision in appeal" would imply that the court had dealt judicially with the decision of the court-below afte'r entertaining the, appeal and delivered a judgment thereafter. The pronouncement of the Supreme Court is clearly to the effect that if for any reason the appeal is not "entertained", the decision cannot be said to be a decision on appeaj. ( 7 ) WHEN can an appeal be said to have "been entertained? To "entertain," in this context, means "to deal" with "or" treat in a "specified manner or to admit to consideration. ( 7 ) WHEN can an appeal be said to have "been entertained? To "entertain," in this context, means "to deal" with "or" treat in a "specified manner or to admit to consideration. " When an appeal is dismissed as a result of the delay in its filing not being excused or as a result of its abatement against one of the respondents in the appeal, can it be said that the appeal had been dealt with by the appellate court after "entertaining" it?" the expression "entertaining" an appeal would, having regard to the pronouncement of the Supreme Court in Kalavati's (3) case, impart the idea of the appellate court judicially dealing with the subject matter of the appeal and delivering judgment, and therefore, a decision on the basis of which an appeal is virtually excluded from being even admitted to consideration cannot connote the idea of its having been 'entertained'. No doubt the view taken in Nathi Bai's case (12), which we have adverted to earlier, would suggest that if the appellate Court does not vary or reverse the decree under appeal, inferentially, its order must be taken to be one of affirmance. On parity of reasoning such an inference would also be available if the appeal is dismissed consequent upon a prayer for excusing the delay being refused. Such a position is clearly excluded by the pronouncement of the Supreme Court in Kalavati's (3) case. Having regard, to this pronouncement it requires to be held that the view taken in mangala, Bai's (2) case lays down the law correctly. Dismissal of the appeal, in the circumstances it has come to be made in the present case, is a case of the appeal not having been "entertained" at all and clearly falls within the enunciation of the Supreme Court to the effect that where "for any other reason appeal is not entertained, the decision cannot be said to be a "decision on appeal. " ( 8 ) POINT (b): So far as the merits of the order of the Court below that the appeal as against respondent-2 had abated and that consequently the appeal could not be permitted to be proceeded with as against other respondents is concerned, Sri. T. S. Ramachandra has three grounds to urge. " ( 8 ) POINT (b): So far as the merits of the order of the Court below that the appeal as against respondent-2 had abated and that consequently the appeal could not be permitted to be proceeded with as against other respondents is concerned, Sri. T. S. Ramachandra has three grounds to urge. The first is that upon the death of the 2nd respondent right to sue survives against the surviving respondents 3, 4 and 5 who were the sons of the deceased 2nd respondent, and, who were already on record and that the estate was substantially represented. The second is that the suit itself was against a firm of partners under rule 1 of Order XXX CPC and that the death of the defendant would not entail any abatement of the suit having regard to the provisions of rule 4 of Order 30 CPC. The third, ground urged by Sri. T. S. Ramachandra turns "upon the scope of Order 41, rule 4 CPC and is to the effect that as the said provision enables one of the, parties to a, suit to obtain relief in. appeal when the decree appealed, from proceeds on a ground common to him and others, the court in such an appeal may reverse or vary the decree even though a non-appealing defendant who had also suffered a decree had, either not appealed or had not been made a party to the appeal. It does not appear to us to be necessary in this case to go into the first two contentions urged by the learned counsel for the petitioners. Indeed, the question whether rule 4 of Order 30 CPC is, at all, attracted to a case where in addition to the firm all the partners are also individually made parties to the suit, is not free from doubt. Several decided cases have taken the view it is not. See: M. S. P. Sound Engineer v. Pooran Chand (AIR 1975 allahabad 207) and Chtelal Ratanlal v. Rajmal Millapchand (AIR 1951 nagpur 448 ). We do not feel. called upon to pronounce on this question in the present case. Suffice it to say that the view of the court below that one of the consequerces fo the legal representatives of the 2nd respondent not being brought on record is the possibility of conflicting decrees, is unsuppottable. We do not feel. called upon to pronounce on this question in the present case. Suffice it to say that the view of the court below that one of the consequerces fo the legal representatives of the 2nd respondent not being brought on record is the possibility of conflicting decrees, is unsuppottable. Order 41 rule 4 CPC, inter-alia, provides that where as here theere are more defendants than one in a suit and the decree appealed from proceeds, on any ground common to all the defendants, any of the defendants may appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of the defendants. There was some conflict of judicial opinion on the question whether power under Or. 41 R. 4 CTC could be exercised where all the parties, against whom a decree js passed on the ground common to them, are not impleaded in the appeal. The pro ponderance of authority was that even in the absence of a person against whcm a decree has been passed on a ground common with the appellant, the appeal was maintainable and appropriate relief may be granted. Maintainability of an appeal under such circumstances has been considered bv the Supreme Court in Ratan Lal Shah v. Firm Lalman Das Chhadamma Lal ( (1969) 1 SCWR 978 ). Having regard to this pronouncement it is to be held that even if respondent 2 had not at all been notified in the appeal, or had not as in I he present case himself appealed against the decree, it would be no, reason to deprive the appealing-defendant of his right to prosecute his appeal an claim relief under rule 4 of Order 41 CPC. The appellate court has deal with the matter on the analogy of an unsuccessful plaintiff's appeal against some only of the defendants where the basis of the claim in, the suit was common to all of them and a joint-decree was sought. This approach to the case on the part of the court-below is clearly erroneous. ( 9 ) FOR the reasons aforesaid, this civil revision petition is allowed and the order dated 18-9-1974 made on I. A. II and the consequent order made by the appellate court dismissing the appeal are set aside. This approach to the case on the part of the court-below is clearly erroneous. ( 9 ) FOR the reasons aforesaid, this civil revision petition is allowed and the order dated 18-9-1974 made on I. A. II and the consequent order made by the appellate court dismissing the appeal are set aside. The appellate court is now directed to readmit the appeal and to dispose of the same in accordance with law. Haying regard to the circumstances of the case, the: parties are left to bear their own costs in this petition. --- *** --- .