JUDGMENT - DEO B.G., J.: - The short and important point for decision in this appeal is whether a suit for specific performance of a contract abates in its entirely when one of the plaintiffs, being a party to a joint, indivisible contract, dies and his legal representatives are not brought on record within the specified time. 2. The facts in brief are as follows: 3. Four brothers viz. one Ramchandra who dies before the institution of the suit and whose four legal representatives are the appellants Nos. 1 to 4, Suryakant plaintiff No. 5, Chandrakant plaintiff No. 6 and Omkant plaintiff No. 7 agreed to purchase one plot being Plot No. 390/4, Ghat Road, Nagpur, from the defendants-respondents Nos. 1 and 2, some time in 1973, and while entering into an agreement for that purpose also agreed to purchase the adjoining Plot No. 390/4, which is the subject-matter of the suit by the following term in the contract dated 10-8-1973. “If at any time in future, adjoining house and Plot No. 390/3 is to be sold it shall be first offered to party No. 2, who shall have the first right to purchase the same ---” 4. In spite of the aforesaid term the defendants-respondents Nos. 1 and 2 published a notice in the daily 'Nagpur Times' on 16-7-1978, making known their intention to sell the suit property to the defendants-respondents Nos. 3 and 4. On coming across this notice, the plaintiffs protested by a registered notice to the defendants-respondents asserting their rights of pre-emption and the terms of the earlier contract stated above, but in vain. The defendants-respondents Nos. 1 and 2, however, sold the suit house and Plot No. 390/3, to the defendants-respondents Nos. 3 and 4 by two registered sale-deeds dated 26-8-1978, for Rs. 45,000/- each. 5. In the mean time, one of the four contracting brothers viz. Ramchandra died. The legal representatives of Ramchandra i.e. plaintiffs-appellants Nos. 1 to 4, along with the surviving three brothers viz. plaintiffs-appellants Nos. 5, 6 and 7, instituted the present suit in the Court of Civil Judge, Senior Division, Nagpur on 29-11-1978 against the defendants-respondents Nos. 1 and 2 and their transferees with notice of the plaintiff's prior claim, the defendants-respondents Nos. The legal representatives of Ramchandra i.e. plaintiffs-appellants Nos. 1 to 4, along with the surviving three brothers viz. plaintiffs-appellants Nos. 5, 6 and 7, instituted the present suit in the Court of Civil Judge, Senior Division, Nagpur on 29-11-1978 against the defendants-respondents Nos. 1 and 2 and their transferees with notice of the plaintiff's prior claim, the defendants-respondents Nos. 3 and 4 for specific performance of contract for sale of the suit property i.e. the house and Nazul Plot No. 390/3, Ghat Road, Nagpur for a declaration that the sale-deeds obtained by the respondents-defendants Nos. 3 and 4 on 29-11-1978, were null and void and subsequently, in the suit by amendment for possession of the suit property. The suit was resisted by the respondent-defendants Nos. 1 and 2 the vendors and their transferees defendants-respondents Nos. 3 and 4 by their separate written statements. 5-A. During the pendency of the suit plaintiff Nos. 6 Chandrakant died on 6-6-1981. The defendants respondents Nos. 3 and 4 filed an application Ex. 37 on 20-1-1982, praying for dismissal of the suit as abated, on the ground that the legal representatives of the deceased-plaintiff No. 6 Chandrakant, were not brought on record, within the prescribed period of 90 days. 6. On 10-2-1982, by an application Ex. 39, the plaintiffs informed the Court of the death of plaintiff No. 6 Chandrakant, which took place on 6th June, 1981, and prayed for deletion of the name of plaintiff No. 6 Chandrakant. In this application the plaintiffs averred as below: “The legal representatives of plaintiff No. 6 are not joined as the parties to the suit as they do not want to claim any interest in the suit property.” 7. On 7-7-1982, the learned Civil Judge, Senior Division, Nagpur by a single line order directed that the name of the plaintiff No. 6 be deleted. The application Ex. On 7-7-1982, the learned Civil Judge, Senior Division, Nagpur by a single line order directed that the name of the plaintiff No. 6 be deleted. The application Ex. 37 for abatement and dismissal of the suit filed by the respondents-defendants was heard at length by the learned Civil Judge, Senior Division, having regard to the admitted position that the plaintiff No. 6 Chandrakant having died during the pendency of the suit and his legal representatives not having been brought on record during the prescribed period of limitation and on the other hand the plaintiffs contending that the legal representatives had not interest left to the property, the learned trial Judge addressed itself to the question as to whether the surviving plaintiffs could maintain the present suit without bringing the legal representatives of the plaintiff No. 6 on record and as to whether the suit stood abated as the legal representatives were not brought on record. The learned trial Judge came to the conclusion that what was sought to be exercised by the plaintiffs was a right of pre-emption which was a personal right and, therefore, on joinder of the legal representatives of the plaintiff No. 6 was fatal to the suit. The learned Judge further observed that even if it is held that the suit was for specific performance of the contract the provisions of sections 15 and 16 of the Specific Relief Act came in the way of the plaintiffs. The learned trial Court held that as under section 15 of the Specific Relief Act, the contract of specific performance can be enforced by any party to the contract all the persons who were parties to the agreement dated 10-8-1973, were necessary parties to the suit. Under section 16-C, the performance of the contract would not be enforced in favour of the person who has not averred in the pleadings and who has not proved that he was ready and willing to perform his part of the contract. The learned trial Judge, therefore, observed that it was clear that so far the deceased plaintiff No. 6 Chandrakant was concerned, nobody has come forward to say that he is ready to perform the part of the contract of Chadrakant and as such the relief of specific performance could not be granted to the plaintiffs. 8. The learned trial Judge, therefore, observed that it was clear that so far the deceased plaintiff No. 6 Chandrakant was concerned, nobody has come forward to say that he is ready to perform the part of the contract of Chadrakant and as such the relief of specific performance could not be granted to the plaintiffs. 8. The learned Civil Judge also come to the conclusion that the real test in the matter was whether any person was a necessary party to the suit. In this context the learned Civil Judge, referred to the provisions of the Specific Relief Act, that the specific performance of the contract would not be enforced in law in favour of a party who is not entitled to recover damages for breach of the contract. The learned trial Judge further observed that it was never averred that the plaintiffs right to sue survived without the legal representatives of the deceased-plaintiff Chandrakant. In this view of the matter, and as there was no alternative relief of refund of earnest money, the learned Civil Judge came to the conclusion that as the legal representatives of the deceased Chandrakant have not been brought on record the suit for Specific Performance was not properly constituted. The impugned order dated 1-8-1983 abating the suit in its entirety and consequently dismissing the same came to be passed. 9. It is against this order that the present appeal has been filed. 10. Shri S.G. Ghate the learned Council for the appellant assailed the impugned order of the abatement of the suit as a whole on a number of grounds. In the first place it was contended that the suit had abated as regards plaintiff No. 6 Chandrakant only and that there was no bar for continuation of the suit on the part of the surviving plaintiffs who were the parties to the contract. In the first place it was contended that the suit had abated as regards plaintiff No. 6 Chandrakant only and that there was no bar for continuation of the suit on the part of the surviving plaintiffs who were the parties to the contract. It was also urged that if the trial Court had come to the conclusion that the legal representatives of the plaintiffs were the necessary parties to the suit, it should have directed the surviving plaintiffs to implead them as the defendants and that after giving an opportunity to all the parties for taking necessary pleas should have decided the suit on merits, especially when after the death of plaintiff No. 6, the learned trial Court had passed an order deleting the name of the plaintiff No. 6, in spite of the objection that, that the suit had abated. It was also brought to our notice that after the death of the plaintiff No. 6 an order of temporary injunction was also passed in favour of the plaintiffs which stood vacated with the impugned order. 11. On the other hand the learned Counsel for the defendants-respondents Shri Deopujari supported the order of abatement of the suit as a whole on the ground that the contract in question was joint and indivisible and for want of necessary parties to the suit the very constitution of the suit became bad and the order of abatement and consequent dismissal of the suit was justified. It was also contended that the impugned order not being a decree and not being an appealable order under section 43 read with section 104 of the Code of Civil Procedure, the appeal itself was not tenable. 12. The question involved is not a virgin one. There is a catena of decisions on the question of abatement on the death of a party. The question is set merely a procedural but has to be resolved with reference to substantive law also. 13. In support of the contention that the surviving plaintiffs could have continued the suit the learned Counsel for the plaintiffs Shri Ghate invited our attention to (Jagdeosingh and others v. Bisambar and others)1, I.L.R. 1938 Nagpur 41. The question is set merely a procedural but has to be resolved with reference to substantive law also. 13. In support of the contention that the surviving plaintiffs could have continued the suit the learned Counsel for the plaintiffs Shri Ghate invited our attention to (Jagdeosingh and others v. Bisambar and others)1, I.L.R. 1938 Nagpur 41. In that decision His Lordship Justice Bose held hat the words “any party” in section 23 of the Indian Specific Relief Act, would cover a case where one or more contractors want to enforce the contract against the will of others. The wording is not either party thereto. The Specific Relief Act, 1887, has been repealed by the Specific Relief Act of 1963 and section 15, of the Specific Relief Act, 1963, corresponds with section 23 of the repealed Act. It was, therefore, contended by the learned Counsel for the appellant Shri Ghate that there was no bar for the surviving plaintiffs to continue the suit and for the trial Court to dispose of the suit on merits, by allowing both the parties to raise their pleas, instead of holding that the suit, abated in its entirety. We cannot, however, agree with this contention for the simple reason that all the facts necessary for deciding as to whether the suit abated or not were before the Court. It was only a question of application of law. As would be seen the learned trial Court had come to a right decision of finding that the right to sue did not survive with the surviving plaintiffs alone without the legal representatives of the deceased plaintiffs No. 6 not having been brought on record by the plaintiffs for whatever reason. Even in Jagdeosingh's case (supra), His Lordship Justice Bose had observed that in a suit for specific performance of an agreement to sell, it is no necessary that all the persons agreeing to purchase must be joined as plaintiff, although i is essential that all the parties to the contract should be before the Court either as plaintiff or defendant. (emphasis supplied). 14. (emphasis supplied). 14. It is needless to say that in the instant case it was for the surviving plaintiffs to have brought on record the legal representatives of the deceased-plaintiff No. 6 Chandrakant namely his widow Chandra and his daughter Ritu at least as the defendants, although according to the plaintiffs they had no interest left in the property. 15. Order 22 of the Code of Civil Procedure provides for the procedure on death, marriage and insolvency of parties. Under Rule 1 of the said Order the death of the plaintiff of defendant shall not cause the suit to abate if the right to sue survives. Under Rule 2 where there are more plaintiffs or defendants than one and any one of them dies, and where right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. Rule 3 of Order 22 provides as follows: “3(1) “Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit. 3(2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.” We are not concerned here, in this case with Rule 1 or Rule 3(2), as they govern the case where there is only one plaintiff. The cases of more plaintiffs than one are covered by Rules 2 and 3(1). The cases of more plaintiffs than one are covered by Rules 2 and 3(1). Rule 2 provides that the proceedings in a suit with the death of one of the plaintiff the right to sue must survive in favour of the surviving plaintiffs in which case no legal representatives of the deceased plaintiff will be brought on record. As per Rule 3(1) where a right to sue does not survive in favour of the surviving plaintiffs the legal representatives of the deceased plaintiff have to be brought on record and that too on the application made in that behalf. 16. It would, therefore, be clear that all depends on the right to sue surviving in favour of the surviving plaintiffs on the death of, one of the plaintiffs. If it does not and the legal representatives of the deceased-plaintiff are not brought on record, either as plaintiffs or defendants, there is no other go for the Court than to throw the suit away as having abated in its entirety. 17. One has, therefore, necessarily to go into substantive law to find out whether the right to sue survives in the case of joint and indivisible property. Section 37 of the Indian Contract Act deals with obligation of parties to contracts. Section 37 reads as under: “The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or executed under the provisions of this Act, or any other law.” “Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.” 18. It is, therefore, clear that the plaintiffs including the legal representatives of the deceased plaintiff who are co-promisors must be before the Court and offer to perform the obligations under the contract under the substantive law. Section 45 of the Indian Contract Act reads as under: “When a person has made a promise to two or more persons jointly, then unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any on them, with the representative of such deceased person jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.” 19. It follows that when four persons are co-contractors and file a suit jointly for specific performance of a contract and one of them dies during the pendency of the suit, the right to sue survives jointly with the surviving plaintiffs and the legal representatives of the deceased-plaintiff. In other words all those in whom the right to sue survives jointly become necessary parties to the suit. In this context the learned Counsel for the appellants invited our attention to the Order 1, Rule 9 of the Code of Civil Procedure. It provides thus: “No suit shall be defeated by reason of misjoinder or non-joinder of parties and the Court may in every suit deal with matter in controversy so far as regards the rights and interests of the parties actually before it.” It may be noted in this connection that by the Amendment Act 104 of 1976, the following proviso has been added to this rule: “Provided that nothing in this rule shall apply to non-joinder of a necessary party.” 20. A person in whose favour a right to sue survives under Order 22, therefore, becomes a necessary party and its non-joinder becomes obviously fatal to the suit. A few cases decided by this Court may be noted. In (Pandurang Sadashi Patil v. Pandurang Chimanaji Patil)2, 1983 Mh.L.J. 460, a suit for specific performance of contract of sale and in the alternative for refund of earnest money was filed against two brothers. During the pendency of the suit one of the two brothers died and no steps were taken to bring the legal representatives on record within time. While holding that the suit not only abated in its entirety in respect of the claim for specific performance but also abated as regards the claim for refund of earnest money. His Lordship Waikar, J., as he then was , observed in Paragraph 8 as under: “Here the two brothers who were joint owners had entered into an agreement with the plaintiff to sell their property. The suit was founded upon the said agreement - whether for specific performance or for the alternative relief of refund of earnest money. The interest of the two brothers was joint and indivisible in the field in question - the extent of the share or interest of each being unknown. The suit was founded upon the said agreement - whether for specific performance or for the alternative relief of refund of earnest money. The interest of the two brothers was joint and indivisible in the field in question - the extent of the share or interest of each being unknown. Could the plaintiff maintain the suit, initially, only against one of the joint owners for any one of the two reliefs? Certainly no. Can it be said that on the death of one of the two joint owners the right to sue survived against the surviving defendant alone? The answer again must be in negative. Whether a suit abates in its entirety or not always depends upon the nature of the suit and also the nature of the interest of the deceased in the subject-matter. When interest of two defendants in the property promised to be sold was joint indivisible and undefined, on the death of one of them, the suit could not proceed either for specific performance or for refund of earnest money in the absence of legal representatives of the deceased. The above observations apply with equal force to the instant case with the only difference that in the cited case one of the two defendants had died while in the instant case one of the four plaintiffs had died. The interest of the four plaintiffs in the instant case and in the subject-matter of the suit being joint, indivisible and undefined, the suit has to abate in its entirety on the failure of the surviving plaintiffs to bring on record the legal representatives of the deceased plaintiff No. 6 within the time prescribed by law. 21. Order 22, Rule 11 provides that the order applies to appeals by substitution of the word “plaintiff” by the word “appellant” and the word “defendant” by the word “respondent” and the word “suit” by the word “appeal”. In (Motilal Mahavirprasad Sharma and another v. Manojkumar Vitahlrao Ghiya)3, 1981 Mh.L.J. 211, there was an appeal by vendor and the transferee against a decree for specific performance. The vendor died during the pendency of the appeal and as the legal representatvies were not brought on record within time, the entire appeal abated. 22. Leading case on this subject is (State of Punjab v. Nathu Ram)4, A.I.R. 1962 S.C. 89. The vendor died during the pendency of the appeal and as the legal representatvies were not brought on record within time, the entire appeal abated. 22. Leading case on this subject is (State of Punjab v. Nathu Ram)4, A.I.R. 1962 S.C. 89. In that cases, certain land belonging to two brothers jointly was acquired for military purposes. The matter was referred to an arbitrator who passed a joint award grating higher compensation against which the State Government went in appeal to the High Court. During the pendency of the appeal, one of the two brothers died and his legal representatives were not brought on record within time. It was held that the appeal against both the brothers had abated and that the appeal against both the brothers could not proceed. It was observed that to get rid of the joint decree holders and in the absence of one, the appeal was not properly constituted. In paragraph 6 of the Judgment Their Lordships observed: “The question whether a Court can deal with such matters or not, will depend on facts of each case and, therefore, no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be state that ordinarily the considerations which may weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for a decision of the controversy before the Court.” 23. When the principle is applied to the suits it is necessary to see whether in such cases the suit continues to be properly constituted with all the necessary parties, i.e. whether all the parties in whose favour the right to sue survives in the case where one of the co-plaintiffs dies in a case of contract which is joint and indivisible are on record or not. 24. The view expressed in State of Punjab's case (supra) was followed by Their Lordships in (Ramgaya Prasad Gupta and others v. Bramhadeo Prasad Gupta and another)5, A.I.R. 1972 S.C. 1181. It was a suit for dissolution of partnership. One of the respondents sharer died during the pendency of the appeal. His legal representatives were not brought on record. 24. The view expressed in State of Punjab's case (supra) was followed by Their Lordships in (Ramgaya Prasad Gupta and others v. Bramhadeo Prasad Gupta and another)5, A.I.R. 1972 S.C. 1181. It was a suit for dissolution of partnership. One of the respondents sharer died during the pendency of the appeal. His legal representatives were not brought on record. While holding that the appeal abated as a whole Their Lordships observed in para 16 as follows: “Under Rule 4(3) read with Rule 11 of the Order 22, Civil Procedure Code 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. Nathu Ram, A.I.R. 1962 S.C. 89, it is not correct to say that 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 a part of the substantive law.” 25. It is, therefore, the substantive law which has to be looked into to find out whether a lis is constituted properly or remains to be constituted with all the necessary parties on record, so that it may be disposed of by the Court. It is, therefore, that when a co-plaintiff being a party to a joint and indivisible contract dies and his legal representatives are not brought on record within the time prescribed, the suit does not remain properly constituted and becomes liable to be dismissed as a whole as abated in its entirety. 26. In the instant case, therefore, one of the plaintiffs having dies during the pendency of the suit the contract in favour of the plaintiffs being joint and indivisible the suit abated in its entirety when the legal representatives of the deceased plaintiff were not brought on record within the time either as plaintiffs or as defendants. 27. In this view of the matter, the question of tenability of the appeal on the ground that the impugned order is not appealable as it does not amount to a decree, need not be gone into. 28. In result, the impugned order being correct, the appeal fails and is hereby dismissed with no order as to costs in the circumstance of the case. Appeal dismissed. -----