Judgment 1. This second appeal is by the defendant against the judgment of affirmance. 2. The only point for consideration in this appeal is whether the appeal filed by the defendants in the lower appellate Court abated as a whole. 3. The learned counsel appearing for the defendant appellant advanced only one submission to the effect that the finding of the lower appellate Court to the effect that the appeal abated as a whole was erroneous in law and hence this Court should set aside that finding and send the case back by way of remand for disposal of the appeal in accordance with law. 4. In order to appreciate the submission advanced by the learned counsel for the defendant appellant it is necessary to state a few facts. The plaintiffs respondents brought a money suit No. 61 of 1963 against the defendants (originally there were two defendants) for recovery of a sum of Rs. 3,900.00 as principal besides interest thereon on the basis of a handnote dated 29-8-1960. According to the plaintiffs, the handnote was executed by Rati Singh (defendant No. 1) as karta of the joint family comprising of himself and his son (defendant No. 2). According to them, this advance of Rs. 3,900.00 by way of loan was only to help the defendants. According to them, on demand when the defendants refused payment, they brought the suit. 5. The two defendants filed a joint written statement and the common defence was that the defendant No. 1 did not execute any handnote in favour of the plaintiffs in lieu of the price of the truck and according to the defendants, the handnote in suit was forged, fabricated, collusive and without consideration. The other details are not necessary for the purpose of deciding the point in question. 6. The trial Court decreed the suit on contest and held that the defendant No. 1 (Rati Mahton) did execute the handnote in question and that the handnote in question was genuine, valid and for consideration and was enforceable in law. The trial Court held that the plaintiffs were entitled to realise the amount as claimed by them and they were also entitled to realise interest pendente lite and future at the rate of interest mentioned in the handnote (Ext.5). It also held that the suit was not barred by limitation. 7. The trial Court held that the plaintiffs were entitled to realise the amount as claimed by them and they were also entitled to realise interest pendente lite and future at the rate of interest mentioned in the handnote (Ext.5). It also held that the suit was not barred by limitation. 7. As against the decree of the trial Court, the defendants preferred an appeal. Rati Singh was appellant No. 1 (defendant No. 1). The appeal was filed on 7-5-1971. The plaintiffs respondents appeared on 30-11-1971 and the appeal was fixed for hearing on 8-2-1972. On 4-12-1972 a petition supported by an affidavit was filed on behalf of defendant No. 2/appellant No. 2 in the Court of appeal below praying to expunge the name of Rati Singh (defendant No. 1) and to substitute the names of his legal heirs as mentioned in the petition. In this petition the appellant stated that appellant No. 1 (Rati Singh) died on 7-9-1972 and his legal heirs were as follows: (1) Khaderu Singh (son). (2) Ashok Kumar Singh (Minor) (son) under the guardianship of Khaderu Singh (father). (3) Ajodhya Singh. (4) Om Prakash Singh. Both minor sons of Ghanshyam Singh (defendant No. 2/Appellant No. 2) under the guardianship of their father. (5) Dhunmuni Devi wife of one Arjun Prasad (Daughter of Rati Singh)" This petition was filed by appellant No. 2 (Ghanshyam Singh). It seems that on the earlier date, i.e. on 22-11-1972 the next date for hearing in the appeal was fixed for 17-1-1973 and thus the petition just mentioned above filed by the defendant No. 2/appellant No. 2 (in the lower appellate Court) was filed on a date which was not fixed in the appeal and the Court, on 4-12-1972 ordered as follows: "Put up when moved". On a perusal of the order sheet dated 20-1-1973 it seems that the Court was closed from 17-1-1973 to 19-1-1973 and hence on 20-1-1973, when the aforesaid petition should have been moved (as ordered on 4-12-1972) was not moved and the Court, on 20-1-1973 passed the following order: 8. Thus the petition for substitution of the legal heirs of the deceased appellant No. 1 (Rati Singh) (defendant No. 1) was rejected by the Court, as it was never pressed and the appeal proceeding for hearing. Thus the petition for substitution of the legal heirs of the deceased appellant No. 1 (Rati Singh) (defendant No. 1) was rejected by the Court, as it was never pressed and the appeal proceeding for hearing. Thereafter on 13-6-1973 the plaintiff respondent No. 1 filed a petition supported by an affidavit to the effect that as appellant No. 1 (defendant No. 1) had already died on 1-9-1972 and as no substitution of his heirs and legal representatives was made, the appeal had abated as a whole. To this application filed by the plaintiff respondent No. 1, the defendant No. 2/appellant No. 2 filed a rejoinder on 28-6-1973 and the appeal was adjourned for hearing on the abatement matter. On 3-7-1973 the defendant No. 2/appellant No. 2 filed another petition for recalling the previous order of rejection of the petition dated 4-12-1972 filed by the appellant No. 2 (defendant No. 2) for substituting the legal heirs of Rati Singh (defendant No. 1/appellant No. 1). The Court ordered this petition to be put up for hearing in presence of the parties. 9. The aforesaid two petitions, i.e. the petition filed by the plaintiff respondent No. 1 dated 13-6-1973 and the petition filed by the defendant No. 2/appellant No. 2 dated 3-7-1973 were heard together and the Court of appeal below, ultimately, held that the appeal had abated as a whole. 10. The learned counsel for the defendant No. 2/appellant has submitted that the defendant No. 2 (Ghanshyam Singh) being the son of defendant No. 1 (Rati Singh) and being already on the record, there was no question of abatement of the appeal. This submission of the learned counsel for the appellant, in my opinion, has no force. 11. The plaintiffs brought a money suit based upon the handnote and asked for a decree for Rs. 4,200.30 p. against the defendant No. 1 as Karta of the joint family besides interest pendente lite. The trial Court decreed the suit. The decree was joint and the shares were indivisible, undefined and unascertained. Rati Mahton (defendant No. 1), according to the finding, executed the handnote for a consideration of Rs. 3,900.00 not only in his personal capacity but also as a Karta of his family. The trial Court decreed the suit. The decree was joint and the shares were indivisible, undefined and unascertained. Rati Mahton (defendant No. 1), according to the finding, executed the handnote for a consideration of Rs. 3,900.00 not only in his personal capacity but also as a Karta of his family. The defendant No. 2 (appellant No. 2 in the Court of appeal below) himself in his application dated 4-12-1972 stated that the deceased Rati Singh left behind the heirs and legal representatives as mentioned in the petition. There is no statement that the other son and the daughter (as mentioned in the petition dated 4-12-1972) were not joint with Rati Singh. Rather, the absence of such a statement in the petition itself shows that the other son and the daughter of the deceased Rati Singh were joint. It is not a case in which there is a question of one son representing fully and effectively the estate of the deceased. In the instant case, the money decree in favour of the plaintiffs and against the defendant is a joint decree and the shares are indivisible and undefined. 12. As already stated above, the plaintiff respondent No. 1 contested the date of death of defendant No. 1/appellant No. 1 in the Court of appeal below. According to the defendant No. 2/appellant No. 2, Rati Singh died on 7-9-1972 and according to the plaintiff respondent No. 1, Rati Singh died on 1-9-1972. I have already stated above that the application for expunging the name of defendant No. 1 (Rati Singh) and for substituting the legal heirs of Rati Singh was filed on 4-12-1972. Thus according to the defendant No. 2/appellant, the application was well within time from the date of death, i.e. from 7-9-1972, but if the death occurred on 1-9-1972, the application was admittedly filed beyond the statutory period. Defendant No. 2/appellant No. 2 and the plaintiff respondent No. 1 fought out this point, i.e. date of death seriously and adduced oral and documentary evidences before the Court of appeal below. The Court of appeal below, on thorough and detailed discussion of the oral and documentary evidences adduced by the parties held that Rati Mahton (defendant No. 1/appellant No. 1) died on 1-9-1972 and not on 7-9-1972 (as alleged by the defendant appellant). The Court of appeal below, on thorough and detailed discussion of the oral and documentary evidences adduced by the parties held that Rati Mahton (defendant No. 1/appellant No. 1) died on 1-9-1972 and not on 7-9-1972 (as alleged by the defendant appellant). It is desirable to mention here that the learned counsel for the defendant appellant tried to persuade me to interfere in this finding of fact as to the date of death, as according to the learned counsel for the appellant, this should be taken to be a finding of fact by the Court of appeal below for the first time (as the matter never arose before the trial Court). This finding of fact as to the date of death is by the Court of appeal below (the final Court of facts) and secondly, this finding given by the Court of appeal below is based on a thorough and detailed discussion of the entire evidences on the record, and hence this Court sitting in second appeal and exercising powers under Sec.100 of the Civil P. C. cannot interfere with this finding which is a finding purely on fact and, in my opinion, there is no force in the submission advanced by the learned counsel for the defendant appellant. It is well settled that it is not open to the High Court to reappreciate the evidence and substitute its own conclusions in place of those entered by the lower Court, while exercising the jurisdiction conferred by Sec.100 of the Code of Civil Procedure. Reference may be made to a case of E. Mahboob Saheb V/s. N. Sabbarayan Chowdhary, AIR 1982 SC 679 . Thus the application for substitution filed by the defendant No. 2/appellant No. 2 was beyond the statutory period. The learned counsel appearing for the plaintiff respondent No. 1 has taken me to the petition filed by the defendant No. 2 on 4-12-1972 and has drawn my attention thereto. There is no prayer in this application for substitution after setting aside the abatement. In my opinion, there could not be any such prayer, as according to the defendant appellant, the death having occurred on 7-9-1972, the application filed on 4-12-1972 was well within time, but the Court of appeal below on a thorough discussion of the evidences on the record negatived the case of the defendant appellant. There is yet another aspect of the matter. There is yet another aspect of the matter. As already stated above, the petition dated 4-12-1972 was filed on a date not fixed in the appeal and the Court of appeal below categorically ordered that the petition be moved on the next date in the appeal and it seems the defendant appellant never bothered to move this application as if no such application was ever filed and in this view of the matter, the substitution petition was already rejected by the order of the Court, as already quoted above. Thus the question of substituting the legal heirs of deceased Rati Singh came to an end. The defendant appellant made another effort by filing an application on 3-7-1973 for recalling the order rejecting the petition filed on 4-12-1972. This application dated 3-7-1973 was also well considered by the Court of appeal below and the Court of appeal below, in my opinion, has very correctly held that materials on record did not justify the recalling of the order dated 20-1-1973 (rejecting the petition for substitution). 13. Thus even though the money decree passed by the trial Court was a joint decree and the shares were indivisible, undefined and unascertained, the defendant No. 2/appellant No. 2 (in the Court of appeal below) could not/did not bring the legal heirs and representatives of the deceased defendant No. 1/appellant No. 1 (Rati Singh) on the record. 14. In the case of Ramagya Prasad Gupta V/s. Murli Prasad, AIR 1972 SC 1181 it has been held as below (at p. 1185):- "Under Rule 4 (3) read with Rule 11 of Order XXII C. P. C. the appeal abates as against the deceased respondent where within the time limited by law no application is made to bring his heirs or legal representatives on record. As pointed out by this Court in the State of Punjab V/s. Nathu Ram, AIR 1962 SC 89 it is not correct to say that the appeal abates against the other respondents. Under certain circumstances the appeal may not be proceeded with and is liable to be dismissed. But that is so not because of the procedural defect but because, as Mulla has pointed out, it is part of the substantive law. (See Mulla C. P. C. Vol. 1 Thirteenth Edition p. 620 under note Non-joiner of Parties). Under certain circumstances the appeal may not be proceeded with and is liable to be dismissed. But that is so not because of the procedural defect but because, as Mulla has pointed out, it is part of the substantive law. (See Mulla C. P. C. Vol. 1 Thirteenth Edition p. 620 under note Non-joiner of Parties). No exhaustive statement can be made as to the circumstances under which an appeal in such cases cannot proceed. But the Courts, as pointed out in the above decision, have applied one or the other of three tests. The Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Courts coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and, therefore, it would lead to the Courts 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 the 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 respondent, if the appeal succeeds, be ineffective that is to say it could not be successfully executed. These three tests, as pointed out by this Court in Sri Chand V/s. M/s. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427 are not cumulative tests. Even if one of them is satisfied, the Court may dismiss the appeal." In the nature of the decree passed by the trial Court (which I have already stated above) and in view of the admitted fact that besides defendant No. 2/appellant No. 2 (one of the sons of the deceased Rati Singh), the deceased Rati Singh did leave behind other son and the daughter as well, according to the defendant himself; I am of the opinion that if the appeal filed by the defendant No. 2 was to be allowed, in the absence of the legal heirs of the deceased Rati Singh, it would lead to the Court passing a decree which would be contradictory/inconsistent to the decree which had become final with respect to the same subject matter between the plaintiffs and the deceased defendant. In the absence of the legal heirs of the deceased Rati Singh being on the record, the appeal, if allowed, would have resulted in two inconsistent decrees. On the facts of the instant case, it was not a case in which one of the sons of the deceased was fully and effectively representing the estate of the deceased. Though it will bear repetition, the decree was a money decree and a joint decree and the shares also were undefined and indivisible. Thus, I hold that the view taken by the Court of appeal below to the effect that the appeal abated as a whole, is not erroneous in law, as submitted by the learned counsel for the defendant appellant. In my opinion, the finding of the Court of appeal below is neither unreasonable nor erroneous in law nor perverse. 15 In the result, this appeal is dismissed. However, in the circumstances of the case, there will be no order as to costs.