JUDGMENT JA MDA R J.- This is defendants' appeal against decree for specific performance of an agreement of sale of immovable property. The dispute in this matter relates to the northern half portion of a double storeyed house bearing house No. 406/0-5 situate on the East Park road at Nagpur. This northern portion was purchased by Ramlal Shankarrao Shinde from one Shri Roy on 8-8-1967 for Rs. 15,000 while the southern portion of the suit house was purchased by respondent Manojkumar on the very day. On 8-8-1967 itself Ramabai, appellant No.2, who died during the pendency of the appeal, took Rs. 4,000 from the respondent and executed an agreement, which purported to be an agreement of sale. By this document, which is produced at Ex. 35, Ramabai agreed to sell the northern portion purchased by her, to the respondent. It was also agreed that the sale-deed was to be executed on 8-9-1967. The sa1e·deed could not be executed before that date and hence at the instance of Ranchhoddas, with whom Ramabai was residing for a number of years, the time of the original agreement was extended and on 14-9-1967 a fresh agreement (Ex. 38) came to be executed under which Ramabai agreed to execute the sale-deed on or before 29th September 1967. The time was further extended till 29th October 1967 at the instance of Ramabai. 2. As Ramabai failed to execute the sale-deed on or before 29th October 1967, the respondent sent a telegram and called upon Ramabai to come to the office of the Sub-Registrar for executing the sale-deed. Ramabai, however, did not oblige and by reply Ex. 40 dated 2nd November 1967, she inter alia contended that the transaction was a money lending transaction. Therefore, on 17th December 1967, the respondent published a public notice in the issue of even date of the Marathi daily 'Tarun Bharat', declaring that Ramabai had entered into an agreement of sale in his favour in respect of the northern portion of the house in question and that if anyone' else entered into any transaction with Ramabai in respect of that property, the said transaction would not be binding on him. In spite of this notice, Ramabai executed saledeed in favour of appellant No.1 on 8-1-1968. When the respondent came to know about this transaction, he served appellant No.1 with a notice of which Ex. In spite of this notice, Ramabai executed saledeed in favour of appellant No.1 on 8-1-1968. When the respondent came to know about this transaction, he served appellant No.1 with a notice of which Ex. 41 is the office copy and called upon him to transfer the property in question in his favour. The appellant neither replied nor complied with the notice and hence the respondent filed Special Civil Suit No. 56 of 1968 against the appellant for specific performance of the agreement of sale executed in his favour by Ramabai. He also prayed for possession of the property in question and by an amendment dated 9-11-1970 sought further declaration that the sale-deed executed by Ramabai in favour of appellant No.1 on 8-1-1968 was not binding on him. 3. Ramabai resisted the suit mainly on the ground that the transaction was a loan transaction and hence the respondent was not entitled to specific performance of the agreement of sale. Appellant No. 1 Motilal pleaded that he was a bona fide purchaser for value without notice. The learned trial Judge negatived the above contentions and passed a decree in favour of the respondent directing Ramabai, original defendant No.2, to execute a saledeed in favour of the respondent, on payment of Rs. 11,000 in respect of the suit property. The learned trial Judge declared that the sale-deed executed by Ramabai in favour of appellant No. 1 was not binding on the respondent and that it is a nullity. He further directed Ramabai and Motilal to deliver possession of the suit property on execution of the sale-deed. Being aggrieved by this decree, Motilal and Ramabai jointly filed the appeal. During the pendency of this appeal, appellant No.2 Ramabai died on 13-11-1973. No steps, however, were taken by appellant No. 1 to bring on record Ramabai's legal representatives. It appears that on 7-11-1977, the respondent filed an application for early hearing of the appeal. In that application be mentioned that Ramabai expired on 13-11-1973. Even then appellant No.1 did not take any steps till 16-8-1978 to bring Ramabai's legal representatives on record. He filed the application on that date. It appears that on 7-11-1977, the respondent filed an application for early hearing of the appeal. In that application be mentioned that Ramabai expired on 13-11-1973. Even then appellant No.1 did not take any steps till 16-8-1978 to bring Ramabai's legal representatives on record. He filed the application on that date. This application was opposed and as there was no plausible explanation for the delay, especially the delay after 4-) 1-1977 for taking steps in bringing the legal representatives of deceased Ramabai on record, applications filed by appellant No. 1 for condoning the delay in applying for setting aside the abatement and for bringing the legal representatives of deceased Ramabai on record, were rejected. By virtue of this order, the appeal filed by Ramabai stood abated. 4. Shri Holey, learned Counsel for the respondent contended that as a logical consequence of the aBatement of Ramabai's appeal, the appeal of appellant No. 1 must also be dismissed. It was urged that if the appeal is not dismissed then there is a possibility of two conflicting decree being passed in respect of the same subject matter. Relying on the decision of the Supreme Court in Ramagya Prasad Gupta and others v. Murli Prasad and others 1. Shri Holey submitted that the appeal cannot be proceeded with. 5. Order 22 Rule 2 of the Civil Procedure Code deals with the procedure where one of several plaintiffs dies and right to sue survives. Rule 3 of the same Order deals with the procedure in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiff or plaintiffs and also in case of death of sole plaintiff or sole surviving plaintiff and the right to sue survives. Rule 4 of Order 22 deals with the procedure in case of death of one of several defendants or of sole defendants. By virtue of Rule 11 the provisions of Rules 2, 3 and 4 are applicable to appeals also. Rule 4 of Order 22 deals with the procedure in case of death of one of several defendants or of sole defendants. By virtue of Rule 11 the provisions of Rules 2, 3 and 4 are applicable to appeals also. By virtue of Rule 2 read with Rule 11, where there are more appellants or respondents than one and any of them dies and where the right of sue survives to the surviving appellant or appellants alone or against the surviving respondent or respondents alone, the Court is expected to make an entry to that effect on the record and the appeal is to be proceeded with at the instance of the surviving appellant or appellants or against surviving respondent or respondents. In the present case, it is obvious that the right to sue does not survive to appellant No. 1 alone. Even though as a subsequent purchaser, he is a necessary and proper party to the suit, he has no right independently of his vendor-deceased Ramabai. Provisions of Rule 2, read with Rule 11, therefore, cannot be invoked for proceeding with appellant No. l's appeal in the absence of the legal representatives of deceased Ramabai. 6. Rule 3, read with Rule 11 contemplates that where one of two or more appellants dies and the right to sue does not survive to the surviving appellant or appellants alone, or sole appellant or sole surviving appellant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased appellant to be made a party and shall proceed with the appeal, and where within the time limited by law no such application is made, the appeal shall abate, so far as the deceased appellant is concerned. Ordinarily, in a case where there are more than one appellants, the abatement of appeal under Rule 3, read with rule]] will be only so far as the deceased appellant is concerned. The effect of such abatement on the whole appeal or on the rights of other appellants depends upon the nature of the right or relief claimed in the appeal. The effect of such abatement on the whole appeal or on the rights of other appellants depends upon the nature of the right or relief claimed in the appeal. If such right or relief is an individual one existing in or against all the appellants jointly, the whole appeal will fail by reason of abatement with respect to one of them, but if such right or relief is divisible or available to or against each of them individually, abatement against one or some alone will not cause the entire appeal to fail. In the above mentioned decision their Lordships of the, the Supreme Court relying on the two earlier decisions in State of Punjab v. Nathu Ram2 and in Sir Chand and Others v. M/s Jagdish Prasad Kishan Chand and 0lhers3 have stated the tests for determining the effect of abatement in respect of one of the respondents on the rights of other respondent to the appeal. Their Lordships have observed that the appeal does not abate against the other respondent but under certain circumstances, the appeal may not be proceeded with and is liable to be dismissed, not because of the procedural defect, but because it is a part of the substantive law. The relevant observations about the circumstances in which the Court will not proceed with an appeal, when it is abated against one of the respondent appear in Para 16 of the judgment and read as follow: "The 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 will 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 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..... It may be pointed out that the three tests are not cumulative tests. Even if one of them is satisfied the Court may dismiss the appeal." As rightly pointed out by Mr. It may be pointed out that the three tests are not cumulative tests. Even if one of them is satisfied the Court may dismiss the appeal." As rightly pointed out by Mr. Holey, the relevant test in the case before us is the test (a). The question about the effect of abatement consequent upon the death of one of the appellants on the rights and reliefs claimed by the surviving appellants was examined by their Lordships of the Supreme Court in the light of the provisions of Order 4 I, Rule 4 of the Civil Procedure Code in Rameshwar Prasad and others v. Shambehari Lal Jagannath and another4. In that case their Lordships considered whether the provisions of Order 41, Rule 4 can be invoked for reversing or varying the decree in favour of other appellants when appeal against one of the appellants abates, because of the failure to bring his legal representatives on record. Relying on the earlier decision in State of Punjab v. Nathu Ram, Their Lordships held that it will be against the conscience of the Court to hold that Rule 4 of Order 41 empowers the Court to pass a decree in favour of the legal representatives of the deceased appellant on hearing of appeal by the surviving appellants even though decree against him has become final. They further held that Rule 4 of Order 41 does not override Rule 9 of Order 22 and that they deal with different stages of an appeal. The proposition that is relevant for the purpose of this appeal finds place in head-note (c). They further held that Rule 4 of Order 41 does not override Rule 9 of Order 22 and that they deal with different stages of an appeal. The proposition that is relevant for the purpose of this appeal finds place in head-note (c). The note reads as follows: "Appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or defendants appeal from the decree and anyone of them dies and the appeal abates so far as he is concerned under Order 22, Rule 3." Their Lordships have also observed in the above mentioned case that the discretionary power conferred on the Court by Order 41, Rule 33 is not to be exercised in favour of a party who was negligent in taking steps for bringing legal representatives of the deceased appellant on record or to nullify the effect of the abatement of the appeal so far as the deceased appel1ant is concerned. According to their Lordships such an exercise of power would lead to the existence of two contradictory decrees between the heirs of the deceased appellant and the respondent, one passed by the appellate Court and another to the contrary effected by the Court below, which has attained finality consequent on the abatement of the appeal in so far as they are concerned. Their Lordships have further emphasized that this contingency is always to be avoided. 7. It cannot be disputed that the decree proceeds on grounds common to both the appellants. Their Lordships have further emphasized that this contingency is always to be avoided. 7. It cannot be disputed that the decree proceeds on grounds common to both the appellants. The decree proceeds on the finding that deceased Ramabai had executed an agreement of sale in favour of the respondent and that appellant No.1 purchased the property with full knowledge of this agreement of sale, In the case Sri Chand and others v. MIs Jagdish Prasad, the Supreme Court also considered the scope of Order 41, Rule 4 and held that an appellate Court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under Order 41, Rule 4, when the decree proceeds on a ground common to all the plaintiffs and defendants, if all the plaintiffs or defendants appeal from the decree and anyone of them dies and the appeal abates, so far as he is concerned. in that case, the appeal was filed only by 3 sureties, who had executed an unregistered bond in the suit for the satisfaction of the decree to be passed in the said suit against the defendant. During the pendency of the appeal to the Supreme Court, one of the appellant-sureties died without his heirs being brought on record an appellants within time prescribed under Order 16, Rule 12 of the Supreme Court Rules. The question that was posed was, whether the appeal abated in its entirety or whether the Court could proceed with the hearing of the appeal, so far as the remaining sureties were concerned and reverse the order of the High Court under Order 41, Rule 4, Civil Procedure Code. It was held that even though the liability of the sureties was, under law joint, and several, the liability of each surety was not distinct. It was further held that the order of the High Court, holding that the sureties were liable to satisfy the claim, notwithstanding their objections, having become final so far as deceased surety was concerned, there was possibility of two inconsistent orders coming into existence if the appeal was to be decided. It was, therefore, held that the appeal had abated in its entirety. 8. It was, therefore, held that the appeal had abated in its entirety. 8. Applying the test laid down by the Supreme Court in the above referred decisions and the ratio decidenti of those decisions, it is clear that the appeal must be dismissed as the decree against appellant No.2 Ramabai has become final. No relief can be granted to appellant No.1 in this appeal because in the event of his appeal being allowed there would be conflicting decree in respect of the same subject-matter. Moreover, as mentioned above, the decree against both the appellants proceed on common ground. The plea of appellant No.1 that he is bona fide purchaser for value without notice would not entitle him to any independent relief because if that plea is accepted, then no decree for specific performance can be passed, even against appellant No.2. The logical consequence of this position, therefore, is that appellant No. l's appeal must also be dismissed, the appeal of appellant No.2 having abated. The appeal is dismissed. In view of the peculier circumstances of the case there would be no order as to costs. Appeal dismissed having abated.