Judgment 1. This is an application by the plaintiff. The plaintiff filed a suit for declaration that the sale dated 6-3-67 of the suit properties in Execution Case No. 53 of 1956 was illegal, fraudulent and not binding on him. The defendants, in execution of the decree for costs, had purchased the suit properties for a very low price of Rs. 95. Defendant No. 1 Sunderlal Jha died on 20-6-73. The plaintiff filed a petition on 5-7-73 for string out the name of deceased Sunderlal Jha because his son Lakshmi Kant Jha was already on record as defendant No. 2. The hearing of the suit started on 17-6-78. Defendant-opposite party No. 1 filed a petition stating that defendant No : 1 Sunderlal Jha had also left behind his widow Mt. Ugeshwari Devi and a daughter Sita Devi, who were not substituted in place of deceased defendant No. l. According to the defendants, the whole suit had abated. The plaintiff denied that Mt. Ugeshwari Devi and Sita Devi were the widow and daughter, respectively, of deceased Sunderlal Jha. But even so, he filed a petition that they should be substituted in place of defendant No. 1. The trial Court has found that Lakshmi Kant Jha, defendant No. 2, is the son of Sunderlal Jha and is on the record of the suit from before. The trial court has ultimately dismissed the suit, on the ground that it had abated in its entirety as the plaintiff had failed to substituted Mt. Ugeshwari Devi and Sita Devi in place of the deceased Sundarlal Jha within time. 2. Shri Kaushal Kishore Sinha, learned counsel appearing for the petitioner, submitted that the whole suit cannot abate because one of the heirs of deceased Sunderlal Jha was already on the record as one of the defendants to effectively represent the interest of others. He relied upon a decision of the Supreme Court in Mahabir prasad V/s. Jage Ram, AIR 1971 SC 742 . It was held therein that where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he also is on record as an heir and legal representative. It was held therein that where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he also is on record as an heir and legal representative. It was further held that even if there were other heirs and legal representatives and no application for impleading them was made within the period of limitation prescribed by the Limitation Act, the proceeding would not abate. Shortly stated, the facts of that case were like this. Jage Ram and two were lessees of certain property belonging to Mahabir Prasad, his mother Gunwanti Devi and his wife Saroj Devi. Mahabir Prasad and two others filed a suit for a decree of certain amount of rest due by Jage Ram and others. The suit was decreed the execution of the decree was resisted by Jage Ram and others. The application for execution was dismissed. Mahabir Prasad alone appealed against that order and impleaded the two other plaintiffs as respondents in the appeal. Saroj Devi, one of the plaintiffs-respondents, died and an application was filed by the plaintiff-appellant Mahabir Prasad to strike of the name of Saroj Devi. Her name was struck off. Ultimately, the High Court dismissed the appeal holding that because the heirs and legal representatives of Saroj Devi were not brought on the record within the period of limitation, the. appeal had abated in its entirely. Against that order, an appeal was preferred in the Supreme Court. Referring to the provisions contained in Order 41, Rule 4, of the Code of Civil procedure, it was held : "Competence of the appellate court to pass a decree appropriate to the nature of the dispute in 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 41, 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 or an order had been made on a ground which was common to him and others has 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." On the other hand, learned counsel for the opposite party relied upon a Bench decision of this Court in Munshi Singh V/s. Babulal Singh, (AIR 1997 Pat 29), to which I was also a party. It was held that the question whether, when one of the appellants dies pending appeal, the entire appeal will abate will depend upon the circumstances of the particular case. The criterion to determine the question is whether in the event of the decree being allowed as in favour of the remaining appellants, there would or would not be a contradictory decree in the same litigation with respect to the same subject matter; but where a party died when the suit was in the trial Court and the heirs were not substituted, the situation will be different. Unless the deceased party was a necessary party to the suit, the entire suit cannot abate. In such a situation no aid can be taken from the provisions of Order 41, Rule 4, of the Code of Civil Procedure. So far as the present case is concerned, it has been held that Mt. Ugeshwari Devi and Sita Devi are the widow and daughter, respectively, of the deceased Sunderlal Jha. Any decree which may be passed in the suit in absence of the said Ugeshwari Devi and Sita Devi cannot bind them. Being the heirs of the deceased Sunderlal Jha, they were necessary party to the suit. That being the position, the entire suit must abate due to the non-substitution of the said Ugeshwari Devi and Sita Devi. The trial Court was right in coming to this conclusion and I do not find any reason to interfere with it. 3 This application, therefore, fails and is dismissed but there shall be no order as to costs.