JUDGMENT Deoki Nandan, J. - Kamala Shankar, appellant No. 1, died on 18th May. 80. Application for substitution of his heirs was not made within limitation. The limitation for setting aside the abatement was also allowed to pass without an application being made for that purpose. Ultimately, an application for setting aside of a batement and substitution of Kamla Shanker, appellant No. 1, was made on the 22nd Jan., 1981 along with an application under S.5 of the Limitation Act for condoning the delay in making it. The application for condonation of delay was rejected by the Court's order dated 16th July, 1981 and with that the application for setting aside of abatement and substitution was rejected as time barred. On 26th April, 1983 when the appeal was taken up for hearing before me. I took note of these facts and found that the appeal by the first appellant Kamla Shanker abated on his death. The learned counsel for the surviving appellants, however, urged that the appeal at their instance could still be heard. Learned counsel for the plaintiff- respondents contended that the decree against Kamla Shanker had become final and being joint and indivisible, it could not he set aside in favour of the surviving appellants alone, specially, when all of them were claiming a joint right on a common basis in the land in suit. 2. The matter was thereafter heard at some lenght. Having heard learned counsel for the parties I find that the contention of the learned counsel for the plaintiff respondents must prevail. The following are the reasons. 3. The decree under appeal is of permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the land in suit. 4. Learned counsel for the surviving appellants urged that the appeal at their instance is not affected by the abatement of Kamla Shanker's appeal inasmuch as the only effect of the decree having become final against the heirs of the deceased appellant, Kamla Shanker, would be that they would be bound by the decree of permanent injunction and could not, therefore, disturb the plaintiffs possession over the land in suit. But, the surviving appellants cannot be prevented from having the decree against then set aside, in case they can show that it is wrong on merits, The main thrust of the argument of the learned counsel was that a decree of injunction acts in personam does not create or take away any rights in property. It does not run with the land. 5. The decree of injunction does bind persons, but is granted or refused on an adjudication of rights of the parties to the land with respect to which injunction is sought as in the present case. An injunction restraining a person from interfering with another person's possession or use of land, will not be issued by decree, by a Civil Court, unless the Courts find that the person seeking the injunction is entitled to and possessed of the right and interest claimed by him in the land, and that the person against whom the injunction is sought could not lawfully interfere with or obstruct the exercise of that right and use and possession of the land pursuant to that right, by the person seeking the injunction. The issue of an injunction by decree of Court, as in this case, is thus based on an adjudication of the rights of the parties to the land. On the decree becoming final, as against a party, the adjudication of the rights to the land on which it is based also becomes final. It is not disputed that with the abatement of Kamla Shankar's appeal on his death, the decree of injunction has become final against his heirs and legal representatives. The adjudication of rights on which the decree is based has also become final as against his heirs and legal representatives. The question is whether the surviving appellants could continue with their appeal, that is to say whether they could assail the correctness of the adjudication of the rights of the parties to the land in suit, which had become final against the heirs of the deceased appellant and in favour of the plaintiff-respondents. There is a catena of cases starting from Gajraj Tewari v. Bhagirath Pandey ( AIR 1924 All 95 ) followed by Rani Dhan Dei Kuer v. Fatima Zuhra ( AIR 1939 All 698 ) Baijnath v. Ram Bharose ( AIR 1953 All 565 FB); Rameshwar Pd. There is a catena of cases starting from Gajraj Tewari v. Bhagirath Pandey ( AIR 1924 All 95 ) followed by Rani Dhan Dei Kuer v. Fatima Zuhra ( AIR 1939 All 698 ) Baijnath v. Ram Bharose ( AIR 1953 All 565 FB); Rameshwar Pd. v. Shyam Behari Lal ( AIR 1960 All 741 ), Anwar Khan v. Dy Director of Consolidation ( AIR 1973 All 146 ) of this Court, and State of Punjab v. Nathu Ram ( AIR 1962 SC 89 ); Ram Swarup v. Munshi ( AIR 1963 SC 553 ) and Dwarka Prasad v. Hari Kanta Prasad ( AIR 1973 SC 655 ) of the Supreme Court which laid down the principle that in case the right and interest of the surviving appellants or respondents with the deceased appellant or respondent, as the case may be, whose legal representatives have not been brought on the record, are joint and indivisible, the appeal cannot be heard at the instance of the surviving appellants or against the surviving respondents. 6. In the present case the deceased- appellant, Kamla Shanker and the surviving appellants Nos. 2, 3. and 4, Chabbinath, Ram Shanker alias Nanku and Chhotey Lal. were brothers, being sons of Mata Gulam and their defence was common and almost identical, although Chabbi Nath and Ram Shanker alias Nanku filed one written statement and Kamla Shanker filed a separate written statement. The defence raised by Luthoor, the fifth appellant, was also substantially the same. Indeed, the defence raised by respondents Nos. 3 and 4 was also the same as raised by respondents appellants Nos. 1, 2 and 3. The issues on which the parties went to trial also do not show that any of the defendants was claiming any independent right or interest in the land in suit separately from other defendants. The defence was, thus, common. The right in which they contested the suit was, thus, claimed by the defendant in common for themselves. The decree passed was also joint and indivisible. The appeal cannot, therefore, be heard at-the instance of the surviving appellants, inasmuch as the decree that has become final against the legal representatives of the deceased appellant Kamla Shanker, cannot now be varied. There is possibly another way of looking at the matter. The decree passed was also joint and indivisible. The appeal cannot, therefore, be heard at-the instance of the surviving appellants, inasmuch as the decree that has become final against the legal representatives of the deceased appellant Kamla Shanker, cannot now be varied. There is possibly another way of looking at the matter. It is settled by the decision of the Supreme Court in Satyadhyan Ghosal v. Smt. Deorajin Devi, AIR 1960 SC 941 ; and Y.B. Patil v. Y. L. Patil, AIR 1977 SC 392 ; that a decision operates as res judicata not only in another suit, but also at different stages of the same suit. Explanation VI to S. 11 of the Civil P. C. enunciates the principle that the persons who litigate bona fide in respect of a right claimed in common for themselves and others and persons interested in that right shall be deemed to claim under the persons so litigating. The result is that besides the heirs and legal representatives of the deceased Kamla Shanker, who are bound by the judgment and decree which became final on abatement of Kamla Shanker's appeal, the other defendants also, who claim the right which they did in the land in suit in common with Kamla Shanker, deceased, are also bound by the finality of the judgment and decree against Kamla Shanker and cannot be allowed to canvass that it is wrong, on the general principles of res judicata, the rules of which are substantially the same as those of the statutory res judicata embodied in S. 11 of the Civil P. C. 7. One exception to the rule is, however, that, where the provisions of O. 41, R. 4 of the Civil P. C. apply, those cases are governed by the rule laid down in Mahabir Prasad v. Jage Ram, AIR 1971 SC 742 . The distinction lies on the fact that O. 41, R. 4 of the Civil P. C. applies only when some one or more of the parties bound by a decree do not appeal from it. The distinction lies on the fact that O. 41, R. 4 of the Civil P. C. applies only when some one or more of the parties bound by a decree do not appeal from it. That rule preserves the right of each one of the parties bound by a decree to appeal therefrom, and if he does so, power is confered on the Court to interfere with the whole decree although some of the persons bound by it have not appealed from it; but in a case, where a person has appealed from a decree and dies during the pendency of the appeal, his legal representatives or the surviving appellant or appellants who had appealed with him cannot take advantage O. 41, R. 4 of the Civil P. C. 8. Mr. S. R. Singh, who appears for the surviving appellants, however, referred to Lal Chand (dead) v. Radha Krishan, AIR 1977 SC 789 ; and Harihar Prasad v. Balmiki, AIR 1975 SC 733 . The first of those cases is explained by the fact that there was in that case no abatement of the proceedings on the death of the party inasmuch as his right to sue survived to the surviving parties alone, by virtue of R. 2 of O. 22 of the Civil P. C. In Harihar Parasad's case (supra) also, the Supreme Court found that there was no abatement inasmuch as the estate of the deceased was represented by some at least, of his legal representatives. 9. Mr. S. R. Singh also referred me to Jai Narain v. Bulaqi Das, 1968 All WR 704 : ( AIR 1969 All 504 ) (FB) and urged that it is the judgment which operates as r judicata and not the decree. That is true so. In the present case also, it is the finding contained in the judgment under appeal on the question about the plaintiffs title to the land in suit which has become final on the abatement of Kamla Shanker's appeal from the decree preferred from that judgment, and inasmuch as the judgment and the decree both are joint and indivisible, the finding in the judgment against the defendants would operate at res judicata against the surviving defendant-appellants also. 10. 10. In the result, the appeal is declared to have abated as a whole on the death of Kamla Shanker, as it cannot be heard at the instance of the surviving appellants alone. I make no order as to costs.