JUDGMENT G.S. Sial, M. - The point to be answered by this Bench is : "Whether in a partition suit, which has automatically abated, the appellants would be entitled to get the abatement set aside on the basis of a belated application by the heirs of the deceased respondents." We have heard the learned counsel and have gone through the records of the case. The facts of the case briefly are that the plaintiffs brought a suit for partition claiming that he and defendant Nos. 1-6 were co-Sirdars of the suit plots in which each co-sharer had ?rd share. The suit was contested by defendant No. 3. Sumer and defendant No. 4. Jagardeo alone, who claimed that since they had obtained the suit plots from the original tenants, they along became the Sirdars of the said plots. The trial court negatived the suit of the plaintiff. But, the lower appellate court held that the plaintiff and defendants were co-tenants with 1/7th share each. Thereupon Sumer and Jagardeo filed the present appeal. 2. During the pendency of the appeal, respondent Nos. 2 and 5 viz.; Kalicharan and Ram Nandan dies on September 11, 1972 and June 28, 1972 respectively. No substitute application was filed by the appellant but the heirs of the deceased respondent moved a substitution application on July 17, 1974 along with the application under Section 5 of the Limitation Act. The appellant claimed that this will give them a right to be heard on merits and the automatic abatement stands to be set aside. 3. The learned counsel for the plaintiff-respondent stated, as a preliminary objection, that since neither the heirs who have moved the application, nor their counsel are present, this application should be disposed of as dismissed. The learned counsel for the appellant, in reply, stated that Aditya Narain Singh has authorised him to hold the brief and produced a letter from him saying that he will adopt the arguments advanced by Sri Sankatha Rai, Advocate. In view of his letter of the counsel, in our opinion, the personal presence of the counsel is not necessary. Accordingly, there is little force in this contention of the learned counsel for the respondent and the objection is rejected. In view of his letter of the counsel, in our opinion, the personal presence of the counsel is not necessary. Accordingly, there is little force in this contention of the learned counsel for the respondent and the objection is rejected. The learned counsel for the appellant referred to Order XXII, Rule 4, CPC which says 'on an application made in that behalf' and submitted that the words 'in that behalf' have been interpreted by the Supreme Court in 1964 AIR (SC) 215 where the following observations have been made : "The procedure under Rules 3 and 4 requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the plaintiff as by the abatement of the suit the defendant stands to again. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates so far as the deceased plaintiff is concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends other considerations." Accordingly he argued that there is no law which requires that the application must be filed by the appellant or the plaintiff. Order XXII, Rule 9 of the Code of Civil Procedure says that "the plaintiff or the person claiming to be the legal representatives of the deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal. In a partition suit every body is plaintiff as well as defendant because every party claims and denies the rights of each other. Therefore, those persons who are claiming as heirs of the deceased respondents have also to be impleaded for they are in the position of a plaintiff. There is no question of limitation. The main contest is between the plaintiff and the respondents. He referred to Order XLI, Rule 4, CPC and submitted that a partition case stands covered by Order I, Rule 10, CPC. There is no question of limitation. The main contest is between the plaintiff and the respondents. He referred to Order XLI, Rule 4, CPC and submitted that a partition case stands covered by Order I, Rule 10, CPC. He cited 1971 AIR (SC) 742, wherein their Lordships of the Supreme Court have observed as follows :- "In the present case one of the respondents had died and his heirs have not been brought on the record. Competence of the appellate court to pass a decree appropriate to the nature of the dispute is an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim, has been made a party respondent and on his death his heirs have not been brought on the record. Power of the appellate court under Order XLI, Rule 4 to vary or modify the decree of a subordinate court arises when one of the persons out of many against whom a decree of an order had been made on a ground which was common to him and others had appealed. That power may be exercised when other persons who were parties to the proceeding before the subordinate court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents. The view taken by the High Court cannot therefore be sustained." He also referred in this behalf to the three cases of Board of Revenue reported in 1965 RD 356, 1952 RD 117 and 1950 RD 105. He submitted that Kalicharan, respondent No. 2, submitted to the decree as he neither filed any appeal nor a cross objection and as such at all subsequent stages he would be a proforma party. His claim had been negatived by the trial court. There can be no abatement against a proforma respondent and, therefore, this application should be deemed to be an application under Order I, Rule 10. CPC. So far as Ram Nandan, respondent No. 5, is concerned, he had not admitted the claim of the respondent. His claim was also negatived by the trial court, but he did not file either an appeal or a cross-objection. CPC. So far as Ram Nandan, respondent No. 5, is concerned, he had not admitted the claim of the respondent. His claim was also negatived by the trial court, but he did not file either an appeal or a cross-objection. Sumer and Jagardeo are the main contesting parties in whose favour the trial court has given the decree and Bhagwan Das is the plaintiff. Other persons are, therefore, not interested and are mere proforma parties. 4. The learned counsel further submitted that Order XXII, Rule 4, CPC says that an application can be given by any person. The person who has submitted to the decree against him, will be a proforma party and not a necessary party. In the partition suit every body is in the position of the plaintiff and, therefore, the application for being impleaded and for setting aside the abatement can be filed by any person. There is no question of abatement under Order I, Rule 10 of the Code of Civil Procedure and the applicants should, therefore, be impleaded as parties. 5. The learned counsel for the respondents submitted that either party can be a proforma party or a necessary party. The test would be as to who is likely to lose by the decision in the appeal. The order of the lower appellate court is in favour of all the deceased respondents. A proforma party is a person in whose favour there is no decree. If the lower appellate court has passed a decree in favour of all the deceased persons as well as the plaintiff, then all of them will be necessary parties. Here in this appeal, after the decree of the lower appellate court, the plaintiff and all other defendants stand on the same footing. Only two persons have come in appeal and they have challenged the claim of all. Therefore, they all are necessary parties. We are here concerned with the decree of the lower appellate court who has held that the parties are co-tenure-holders including the deceased persons and, therefore, they all are necessary parties. As regards the contention that in a partition case every party is not the plaintiff and defendant, the learned counsel submitted that this is the correct proposition but applies in certain circumstances only, namely, any body can apply for the preparation of the final decree. 6. As regards the contention that in a partition case every party is not the plaintiff and defendant, the learned counsel submitted that this is the correct proposition but applies in certain circumstances only, namely, any body can apply for the preparation of the final decree. 6. Coming to Order XLI, Rule 4, the learned counsel for the respondent argued that when the interest-in-common, then any one can file appeal for the benefit of all, but there is no provision or any ruling that even if the interest is different one can file an appeal for the benefit of others. The appellants have filed this appeal detrimental to the interest of the respondents and, therefore, this rule will not apply here. The rulings cited by the learned counsel for the appellant are not applicable in this case because they pertain to cases of proforma parties whereas in the present case the deceased respondents are necessary parties. He stated that AIR 1972 SC 1181 (FB) lays down the principles to be followed in a case of abatement. In this case the Additional Commissioner has given decree in favour of five persons and against two persons. The heirs of the deceased respondent were not brought on the record, and as per the law, appeal stands to abate automatically. The result is that the decree of the lower appellate court has become final and valuable rights have accrued in favour of all the respondents. He also referred to Rule 9 of Order XXII, CPC to support his view. 7. We have herd the learned counsels and gone through the record of the case. Their main contention of the learned counsel for the appellant is that since the deceased respondents were merely proforma respondents and since in a partition suit every body is in the position of the plaintiff therefore, the application could be field by any person for being impleaded and for setting aside the abatement. In our view the arguments advanced by the learned counsel are not well taken. The order and decree of the lower appellate court is in favour of all the deceased respondents and as such in the second appeal they are all necessary parties. It is of little consequence that some of the respondents had not filed any appeal against the order of the trial court. The order and decree of the lower appellate court is in favour of all the deceased respondents and as such in the second appeal they are all necessary parties. It is of little consequence that some of the respondents had not filed any appeal against the order of the trial court. But inasmuch as the first appellate court decree has been granted in their favour they will become necessary parties, for any change in the order of the appellate court will affect the rights which have accrued in their favour because of the first appellate court's order. Likewise the contention that in a partition case every party is both the plaintiff defendant will have little force for the cause of action before this court arises from the judgment of the lower appellate court and not from the judgment of the trial court, which has already merged in the orders of the first appellate court. Hence these contentions of the learned counsel must be rejected. 8. As regards applicability of Order XLI, Rule 4, CPC the criteria applied by the Hon'ble Supreme Court (1971 AIR 742) is that in a case where a joint decree had been obtained against some persons and only one of them filed an appeal against the decree and impleaded the other as respondents the appeal filed would be maintainable for the reasons that the person against whom the decree has been passed was on a ground common to the appellant and to those other persons who are either not impleaded as a party to the appeal or are impleaded as respondents. In the present case, the interest of the deceased respondents are not common and in fact, were the appeal to succeed, it would be to the detriment of the interest of the respondent. Therefore the ruling would not be applicable to the facts of the case. The test which should be applied to determine whether an appeal shall be proceeded with or not have been expounded in 1972 AIR (SC) 1181 at page 1182. Therefore the ruling would not be applicable to the facts of the case. The test which should be applied to determine whether an appeal shall be proceeded with or not have been expounded in 1972 AIR (SC) 1181 at page 1182. According to this ruling the courts below will not proceed with an appeal (a) when the success of the appeal may lead to a decision which is in conflict with the decision between the appellant and the deceased respondent and, therefore, will lead to the passing of a decree which will be contradictory to the decree which has become final between the appellant and the deceased respondent or (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 be ineffective. Applying these tests to the present case, it is clear that the judgment of the appellate court has become final so far as the deceased respondents are concerned and any decree passed by this court varying it will be ineffective against the deceased respondents. Therefore, the appeals stand abated automatically. 9. The question, therefore, arises whether the automatic abatement could be set aside if the heirs of the deceased respondents, who are necessary parties file an application for substitution. Since there is no appeal pending before the Board because of the operation of the abatement, such an application will be redundant and cannot in any case, enure to the benefits of the appellants, who failed to get the deceased respondents substituted in time. The making of the application by the heirs of the deceased respondents, when the appeal itself has automatically abated cannot give any benefit to the appellants and the appeal would not get revived. Hence it appears necessary to clarify that Order XXII, Rule 4, CPC has to be read with Rule 9 of Order XXII, CPC, Rule 9 reads as follows :- "9. Effect of abatement of dismissal - (1) Where a suit abates or is dismissed under this Order no fresh suit shall be brought on the same cause of action. Hence it appears necessary to clarify that Order XXII, Rule 4, CPC has to be read with Rule 9 of Order XXII, CPC, Rule 9 reads as follows :- "9. Effect of abatement of dismissal - (1) Where a suit abates or is dismissed under this Order no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of Section 5 of the Indian Limitation Act, 1877, shall apply to applications under sub-rule (2)." 10. A plain reading of the Rule makes it clear that it presumes the plaintiff or the appellant should apply for setting aside the automatic abatement, though it has to be observed that the Rule does not specify that a respondent cannot apply for setting aside the abatement. Thus, the position that emerges is that, had the heirs of the deceased respondent not applied for substitution, then the appeal stood automatically abated and the appellants cannot validly claim that such an application should enure to their benefit and give them the right to prosecute the appeal. In case, the appeal is now heard and the heirs of the deceased respondent get affected then two conflicting decrees would come into existence. Such a situation cannot be allowed to arise. 11. Hence the answer to the question posed before this Bench is that in a partition suit, which has automatically abated, the appellants cannot get the abatement set aside on the basis of an application for substitution moved by the heirs of the deceased respondents. The reference is answered accordingly.