ORDER : This appeal is by the defendant-appellant. Both these defendants jointly filed an appeal in the lower appellate court having undergone a decree against themselves by the trial court. The appeal filed in lower appellate court by the two appellants stood dismissed for default. The two appellants filed an application for restoration of the appeal but the same stood dismissed. Against the ORDER :refusing to restore the appeal in the lower appellate court, the miscellaneous appeal has been filed by the two appellants who filed the appeal in the court below. In this appeal the two appellants wanted the ORDER :dated 12.8.1977 to be set aside. The ORDER :dated 12.8.1977 did not find sufficient cause for non-prosecution of the appeal which resulted in its dismissal for default. 2. The appeal as against one of the appellant stood dismissed in this Court, and all attempts for restoration of the appeal on behalf of appellant no. 1 also failed in view of the ORDER :of this Court dated 15.1.1985. 3. The question now arises is; Whether the appeal can be prosecuted by appellant no. 2 alone. 4. On 31.1.1985 the matter was heard and on that day, argument by counsels of the parties were recorded. Time was allowed to Mr. Chandramouli learned counsel for the respondent, to cite some decisions, if any, in support of his contention that the appeal has abated as whole. 5. My attention has been drawn to a case reported in A.I.R. 1963 Supreme Court 1901 (Rameshwar Prasad and ors. v. Shambehari Lal Jagannath and another) by the learned counsel for the appellant and he contended that neither ORDER :41 Rule 4 Code of Civil Procedure nor ORDER :44 Rule 33 C.P.C. comes to the rescue of the appellant. In the Supreme Court case it appears that at the second appeal stage one of the appellant died but no step for substitution of the heirs of the appellant was taken. In the Supreme Court case it appears that at the second appeal stage one of the appellant died but no step for substitution of the heirs of the appellant was taken. It was argued before the Supreme Court that the appeal could continue at the instance of the appellant already on record and get the impugned decree set aside in favour of all the plaintiffs or defendant as the case may be, in view of the provision of ORDER :41 Rule 4 C.P.C. The Supreme Court in counternancing the said argument held when the decree proceeds on a common ground to an plaintiffs or defendants and all the plaintiffs and defendants appeal from the decree and any of them dies and the appeal abates, the appellate court has no power to proceed with the appeal and vary the decree in favour of all the plaintiffs and defendants. The court also held that ORDER :4l rule 33 Civil Procedure Code which is also of no greater help. The Court is given wide discretion to pass such decrees and ORDER :s as the interests of justice demand. But the power has to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of the rights of various parties. I must confess that I was thinking to exercise this power in favour of the appellant when I recorded my ORDER :dated 31.1.1985. But I find the Supreme Court in paragraph 18 of the JUDGMENT :, further observed, when the legal representatives of the deceased appellant do not take steps for substitution and the surviving appellants are negligent the court is not to exercise its discretion in favour of such a party, the discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as the deceased appellant is concerned. In fact, such an exercise of power will lead to the existence of two contradictory decrees. 6. Mr. Choubey, however, contended that it is a settled law that where the interest of the appellant are severable and distinct from each other, then in the event of abatement the whole appeal does not become incompetent and there is no question of coming to the existence of two contradictory decrees. He drew my attention to the trial court JUDGMENT : and submitted that appellant no. He drew my attention to the trial court JUDGMENT : and submitted that appellant no. 1 was claiming the suit land as a settlee whereas appellant no. 2 was claiming the suit land having obtained in Khoyancha (gift). In my opinion it is so, but that does not solve the problem because of the nature of instant appeal. 7. So far as this appeal is concerned, the interest of both the appellant is joint inasmuch as they have jointly committed default in the lower appellate court in prosecution the appeal. They jointly wanted the appeal in the court below to be restored by filing a common petition. The court below found that both the appellants failed to establish sufficient cause for restoration of the appeal dismissed for default. Therefore, this appeal proceeds on common ground and its scope is confined to the default, which is not distinct and severable. Both of them were jointly responsible for allowing the case to be dismissed for default. If this appeal is allowed by this Court it will be immediately bringing to the existence two conflicting ORDER :s (i) the sufficient cause for restoration of the appeal and the other (ii) there was no sufficient cause for restoration of the appeal. 8. In that view of the matter, I am of the opinion that this appeal has become wholly incompetent and there is no way out but to dismiss it. Appellant no. 2 who jointly filed the appeal with deceased appellant no. 1 cannot alone continue the appeal, in view of the default in not bringing on record the legal heirs of appellant no. 1 either as appellant or party respondents.