JUDGMENT : S. Acharya, J. - The plaintiffs in Title Suit No. 19 of 1966 have preferred these two appeals. 2. The plaintiffs, representing the villagers mentioned in the plaint, have instituted the suit for declaration that the villagers have customary right to hold Dol Jatra and connected festivals on the suit plots and they have also the right to hold bi-weekly Hat on those plots, and the defendants cannot in any manner obstruct the villagers from exercising their above-mentioned right nor can they put up any construction or erect any structure on the said plots. On that basis the plaintiffs pray that the defendants should be permanently injuncted from interfering with the plaintiffs' said right, and a mandatory injunction may be issued for the demolition of any structures if erected by the defendants during the pendency of the suit. 3. In view of the short point on which these two appeals are going to be disposed of, as shall be stated below, it is not necessary for me to narrate the facts asserted and pleaded by both the parties in their respective pleadings. 4. The trial Court decreed the suit with costs in terms to be stated below : Defendants 1 to 12 filed Title Appeal No. 172/74 and defendants nos. 13 to 26 filed Title Appeal No. 182/74 in the Court of the Additional Subordinate Judge, Cuttack against the decision of the trial Court. The plaintiffs were impleaded as respondents in both the Title Appeals, and the defendants, who did not join as appellants in the respective appeals, were impleaded as respondents in the said appeals. Dharanidhar Sahu, defendant no. 19 in the suit, was appellant no. 7 in Title Appeal No. 182/74 and respondent no. 13 in Title Appeal No. 172/74. He has been shown as respondent no. 19 in both these second appeals. 5. During the pendency of these appeals in this Court, the appellants, on 24-1-1978, filed petitions in each of these second appeals stating therein on affidavit that the said Dharanidhar Sahu died on 7-5-1975, during the pendency of the above-mentioned Title Appeals in the lower appellate Court, and that his legal representatives were not substituted in the said Title Appeals and the fact of his death was not disclosed in the lower appellate Court and has not yet been disclosed in this Court by the defendants. In those petitions filed by the plaintiffs in these appeals it is prayed that the name of deceased Dharanidhar Sahu may be expunged from the Memorandum of appeals and the appellants may be allowed to take the following additional ground as ground no. 14 in both the second appeals : "14. For that the appeal had abated in the lower appellate Court by non-substitution of the legal representatives of respondent no. 19 Dharanidhar Sahu who died on 7-5-1975 during the pendency of the appeal in the said Court. After the filing of the said petitions, the counsel for some of the respondents prayed for time to file counter to the said petitions, but the said counter has not yet been filed. Thus the plaintiffs' assertion about the death of Dharanidhar Sahu during the pendency of the Title Appeals in the lower appellate Court has not yet been controverted by the respondents in these second appeals. By the orders of this Court dated 14-3-1978 and 2-8-1978 passed respectively in S.A. Nos. 98/77 and 171/77, the name of respondents no. 19 was ordered to be expunged from the records of these two appeals. The prayer to add the above-mentioned ground in the memorandum of appeals was allowed by this Court by orders dated 14-3-1978 and 9-8-1978 passed in S.A. Nos. 98/77 and 171/77 respectively. 6. Mr. Misra, the learned counsel for the plaintiff respondents contends that as Dharanidhar Sahu (D.19) died on 7-5-1975 during the pendency of the Title Appeals in the lower appellate Court, (which fact has been asserted on affidavit by the plaintiff-appellants and has not been controverted by the respondents in these two appeals) and his legal representations were not substituted, both the Title Appeals in the lower appellate Court abated in their entirety and the judgment and decree passed in the said Title Appeals should be considered as non-existent and are nullity in law. In this connection it is submitted by Mr. Misra that non-substitution of the legal representatives of Dharanidhar Sahu in the said Title Appeals has led to the existence of two contradictory decrees in respect of the same subject matter and hence both the appeals have abated in their entirety. 7. The plaintiffs instituted the suit in their representative capacity, but the defendants were not sued in that capacity. Misra that non-substitution of the legal representatives of Dharanidhar Sahu in the said Title Appeals has led to the existence of two contradictory decrees in respect of the same subject matter and hence both the appeals have abated in their entirety. 7. The plaintiffs instituted the suit in their representative capacity, but the defendants were not sued in that capacity. The trial Court, by its composite decree in favour of the plaintiffs, declared that the villagers represented by the plaintiffs had the customary right to hold Dol Jatra on the day following the Dolapurnima every year on plot no. 2255 in khata no. 189 of village Lunahar, P.S. Salepur, District Cuttack, and it permanently restrained the defendants from interfering with the said right of the villagers in any manner whatsoever. The decree also directed removal of all structures erected by the defendants on the suit land within a period of two months time the date of the decree, failing which the plaintiffs were entitled to remove the same through Court at the cost of the defendants. The defendants were also permanently injuncted from making any construction on the suit land. The above-mentioned decree is a joint decree in favour of the villagers represented by the plaintiffs and is against each individual defendant, including Dharanidhar Sahu (defendant no. 19). So apart from others, the legal re-preventives of Dharanidhar Sahu were also bound by the said decree. As they were not brought on record on the death of Dharanidhar, the decree of the trial Court remained binding, effective and operative against them, and its reversal by the appellate Court could not ensure to their benefit as they were not parties in the said appeals. Thus the failure to substitute them in the two title appeals in the Court below has resulted in the existence of two conflicting decrees, one declaring the plaintiffs' above-mentioned customary right in respect of the suit plot no. 2255 and the other consequential order restraining and directing the defendants as stated above, as decreed by the trial Court, and the other of the appellate Court directing that the plaintiffs have no such right over the said plot of land and hence the other directions contained in the trial Court decree are of no effect. So because of the failure of the defendants to substitute the L.Rs. of deceased defendant no. So because of the failure of the defendants to substitute the L.Rs. of deceased defendant no. 19, an anomalous and incongruous position has arisen, bringing into existence in the same suit two inconsistent and contradictory decrees of the above nature in respect of the same plot and same subject matter. On this ground alone it is to be held that the said appeals in the Courts below abated in toto. 8. The provision of rule 4 of Order 41, Civil Procedure Code does not apply to this case as that rule is limited to the case of appellants only. The extraordinary power under rule 33 of Order 41 cannot be exercised in this case in order to hear and dispose of the appeals on merit, as the defendants have been guilty of utter negligence and laches and due to the same, a valuable right has accrued to the other party. Application of the power under rule 33 for the above purpose would interfere with, or abrogate or deride and/or malign the provisions in the Civil Procedure Code regarding substitution of the L.Rs. and abatement of appeals. 9. On the above considerations, I hold that the title appeals in the Court below abated in their entirety. That being so, the judgments and decrees of the appellate Court in the said two appeals are a nullity in law and are of no effect or avail, and are accordingly set aside. Consequently the judgment and decree of the trial Court would ordinarily stand. But considering the facts and circumstances of this case, I would in the interest of justice, like to invoke the power under rule 33 of Order 41, Civil Procedure Code only for the limited purpose of making some modifications in the last portion of the trial Court decree which is as follows :- "The defendants shall remove the structures erected by them on the suit land within a period of two months hence, failing which the plaintiffs shall be entitled to remove the same at the cost of the defendants through Court and the defendants shall remain permanently injuncted from making any construction on the suit land." The mandatory injunction in the above portion of the decree is in very wide terms and may include within its scope and ambit all structures which were erected on the suit land even long prior to the institution of the suit. On 5-3-1969 a survey knowing Advocate, appointed as commissioner by the trial Court to make local investigation info the matter, visited the place on the Dolpurnima day, and there he found a house, some structures and chalias and a dry bamboo fence on different portions of plot no. 2255 as stated by him in his report, Ext. 3, and shown in the sketch map, Ext.3/b attached to the said report. From the order sheet of the trial Court, it appears that Court issued an ad-interim injunction on 1-2-1966 against the defendants restraining them from constructing any structure on the suit land. The interim injunction was made absolute by that Court on 18-8-1967. There is nothing definite to show that the constructions on plot no 2255, mentioned in Ext.3 and shown in Ext. 3/b were put up on that plot after the said order of the trial Court. Apart from the space occupied by the said constructions there is sufficient vacant land in that plot on which the Dol Jatra festivals can be conveniently held. Considering all the facts and circumstances of this case on this aspect, I am of the opinion that if the mandatory injunction is allowed to be executed as such in its wide scope and sweep and the permanent injunction attached thereto is perpetuated, that will cause immense damage, loss, hardship, and suffering to the owners of those constructions, which would be out of proportion to the relief claimed by the plaintiffs and not essentially required for the due performance of the Dol Jatra festivals. So the interest of justice demands modification of the wide amplitude of the above quoted order of injunction, though on the abatement of the title appeals in the Court below the trial Court decree revives for observance and execution. Therefore, in order to do substantial justice and to prevent justice being defeated in this case, I hereby order that the above-quoted portion of the trial Court decree shall stand amended as follows :- "The defendants shall remove all structures erected by them on the plot no. 2255, except the structures and constructions which were in existence on the suit land at the time when the above named pleader commissioner visited the spot on 5-3-1969. 2255, except the structures and constructions which were in existence on the suit land at the time when the above named pleader commissioner visited the spot on 5-3-1969. If the defendants fail to remove the structures directed to be removed by the above order within a period of two months from today the plaintiffs shall be entitled to remove the same through Court at the cost of the defendants. The defendants shall also remain permanently injuncted from making any construction on any portion of the vacant land in plot no. 2255 which may any way interfere with or cause obstruction for the due performance of the Dol Jatra festivals on the said plot." The above portion of the trial Court decree stands modified as mentioned above. The other portions of the trial Court decree stand confirmed. 10. The second appeals are, therefore, allowed. In the circumstances of this case, however, the parties shall bear their own costs of these appeals. Final Result : Allowed