BALIA, J.—The plaintiff-respondent-Ganpatlal has filed a suit for recovery of a sum of Rs. 3400/- against Mana son of Goma, Harji son of Kesa and Achla son of Nanda, all resident of Siola, Tehsil Sojat, district Pali, in the court of Munsiff, Sojat, on 20.01.1976. The suit was based on a promissory note Ex.1, executed by all the three persons in favour of the plaintiff. The promissory note specifically stated that the liability to payment of loan was joint and several,as is apparent from the following terms in the promissory-note, which reads as under : ^^--------lks ;g :i;s Jheku ds ryc djus ij ;k Jheku ftldks gqDe djs mlds ryc djus ij e; C;kt izfr lSdM+k :- 1½ v[kjs ,d :i;k lSadM+k egkokj ls is<+h iwxrk x.kiryky th vnk dj nwaxkA 2. In the written statement, filed on behalf of defendants, the allegations in the plaint were denied. It was pleaded that the promissory note and receipt in lieu of amount received by the defendants has not been executed by the defendants and it was also pleaded that the pro-note was without consideration. A plea was also taken that the plaintiff is carrying on business of money-lending but he does not hold a valid licence under the Rajasthan Money-Lenders Act and, therefore, the suit is not maintainable. 3. The trial court decreed the plaintiffs suit against all the defendants on 5-7-1978 for Rs. 2500/- only and did reject the claim of interest. The trial court found that the plaintiff is money-lender but held that since the provisions of Amending Act of 1975 had not come into force at the relevant time, Secs. 22 and 23 could not be applied retrospectively to the pending cases. 4. Harji and Achla only appealed before the District Court, Pali against the aforesaid judgment and decree. In the appeal, it was pleaded that one of the defendants Mana had died during the pendency of the suit and his Legal Representatives have not been brought on record, therefore, the suit abated as a whole and the suit ought to have been dismissed in toto. It was also argued that since the plaintiff was a money-lender, he was under an obligation to comply with the provisions of Sections 22 and 23 of the Rajasthan Money Lenders Act and for that reason also, the suit ought to have been dismissed in toto, because Secs. It was also argued that since the plaintiff was a money-lender, he was under an obligation to comply with the provisions of Sections 22 and 23 of the Rajasthan Money Lenders Act and for that reason also, the suit ought to have been dismissed in toto, because Secs. 22 and 23 were applicable even to the pending suits when the Amendment Act of 1975 was made applicable. 5. The appeal of the present appellant-defendants was partially accepted, while it was held that Mana died during the pendency of the suit, the suit against Mana only had abated. The First Appellate Court held the death of Mana did not result in abatement of whole suit and decree could have been passed only against the remaining defendants. The First Appellate Court also held that the trial Court erred in granting decree for expenses in favour of the plaintiff, even in respect of sum for which the suit was dismissed. However, on appreciation of evidence, and relying on the principle enunciated in (1) Gauri Shankar V. Maghram (1), the first appellate court held that the plaintiff cannot be said to be carrying on business of money lending ; and, the plaintiff cannot be said to be. money-lenders within the meaning of Act. Therefore, the question of applicability of Secs. 22 and 23 of the Rajasthan money-lenders Act to the pending suits become wholly irrelevant and does not affect the plaintiffs claim. On the basis of these findings, the appeal was partly allowed and the decree passed by the trial court against Mana son of Goma was set aside. Decree about costs was modified as mentioned above. In other respects, the decree against the remaining defendants (present appellants) was maintained. 6. In these circumstances, the appellants have approached this Court in the above Second Appeal. This court while admitting the appeal on 14.12.1979, framed the following questions as substantial questions of law, arising in the appeal :— " 1. Whether in the death of Mana, the suit can continue against the other defendants-appellants, even though the suit was filed jointly against all the defendants? 2. Whether the suit is not maintainable in absence of licence of Money Lender Act?" 7. Whether in the death of Mana, the suit can continue against the other defendants-appellants, even though the suit was filed jointly against all the defendants? 2. Whether the suit is not maintainable in absence of licence of Money Lender Act?" 7. So far as the first question is concerned, it is contended by the learned counsel for the appellants that the plaintiff has exercised his option to enforce the liability under the promissory note jointly by filing the joint suit and the trial court has passed a joint decree. The decree was indivisible and inseparable. The first appellate court ought to have dismissed the suit in toto. He relied on principles enunciated in decisions delivered in State of Punjab vs. Nathuram (2), Union of India vs. Shree Ram Bohra and others (3) and in State of Punjab vs. Kabul Singh and others (4). 8. AIR 1962 SC 89 (supra), was a case in which certain land belonging to two brothers jointly was acquired for military purposes and, on their refusal to the compensation offered by the Collector, a joint award was passed by the arbitrator granting higher compensation to them jointly. The appeal against the said joint award was filed by the State of Punjab. It was during the pendency of appeal that one of the joint decree-holders died and question arose that on failure on the part of appellant to bring on record the legal representatives of the one of the joint decree-holder-respondent, resulted in abatement of appeal in toto or, it abated only against the deceased-respondent. It was in the aforesaid circumstances that the award of the compensation passed jointly in favour of two respondents was considered to be indivisible and inseparable that the court held that subject matter for which the compensation had been awarded was one and the same and the assessment of compensation so far as deceased respondent was concerned, had become final and there could not be different assessment of compensation for the same parcel of land. Honble Supreme Court sounded a note of caution against applying this principle in abstract by observing as unde :- "When 0.23, R.4, C.P.C. does not provide for the abatement of the appeals against the co-respondents of the deceased- respondent, there can be no question of abatement of the appeal against them. The only question is whether the appeal can proceed against them. The only question is whether the appeal can proceed against them. The provisions of 0.1., R.9, CPC also show that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased-respondent, it has to proceed with the appeal and decide it. It is not only possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it." The question whether a court can deal with such matters or not, will depend upon the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible...." 9. This observation clearly indicate that on death of a party, question of abatement arises only qua the deceased party, and the question whether the appeal or suit can be proceeded against the remaining defendant-respondents, depends upon the facts of each case and in each case, it is to be decided according to its own merit. 10. In 1965 S.C. 1531,(supra) the question that was decided was based on the peculiar facts of that case and does not lend any assistance to the contention raised by learned counsel for the appellant. That was a case in which two persons filed a suit claiming themselves to be Karta of the joint Hindu family. One of them died during the pendency of the suit. The question that arose for consideration was whether the suit can be proceeded by the remaining plaintiff alone? Their Lordships of the Apex Court adverting to the principles of Hindu Law, came to the conclusion that there being two Kartas of Joint Hindu Family, if is not prima facie consistent with the principle of Karta. Their describing themselves Karta of the Joint Hindu Family cannot make them Karta if the Hindu law does not contemplate the existence of two kartas. In these circumstances, it can only deemed that other person of the family has been authorised to carry out the business of the family on behalf of the joint Hindu family and those were the two persons entitled to represent the family, their power to represent would depend on the authority conferred on them by the members of the joint Hindu family. Their authority to act on behalf of the family is not derived under any authority of Hindu Law. It cannot, therefore, be said that when two such representatives of the joint Hindu family suffer a decree in their favour for the benefit of joint Hindu family and the appeal is filed against both of them as respondents representing the joint Hindu family, the other representative continues to represent the joint Hindu family on the death of other. He could not possibly do so when the authority given by the joint Hindu family be to the effect that both of them were to act jointly. In the absence of any knowledge about the terms of the authority of two representatives, it is not possible to urge successfully that on the death of one of the representatives the other representative still continued to represent the joint Hindu Family. Because, that right under the Hindu Law exclusively vest in the Karta. 11. In Nemichand and others vs. Harakchand and others (5), the court was faced with the situation where a joint decree was passed in favour of several defendants and the suit of the plaintiff was dismissed. The plaintiff filed an appeal, during the pendency of which one of the defendants died and no legal representative of deceased respondent was brought on record. The question that arose for consideration was that once the plaintiffs exercised the option of claiming a joint relief in a suit against two or more joint promisors and such claim has been dismissed jointly; he, on the dismissal of suit cannot contend in appeal that their liability is not only joint but also several and that, he could proceed against one of the defendants on the abatement of his appeal against the others. 12. It may be noticed that that was a case in which a valid joint and indivisible decree has come into existence against all the defendants. Rights under the decree had accrued in favour of joint decree-holders. One of the defendants-respondents died during the pendency of the appeal. The question involved was the extent of abatement of appeal. In these circumstances, the question that was directly involved was about right of parties to any relief in appeal. It was not a case where one of the defendants had died during the pendency of the suit and his legal representatives having not been brought on record. The question involved was the extent of abatement of appeal. In these circumstances, the question that was directly involved was about right of parties to any relief in appeal. It was not a case where one of the defendants had died during the pendency of the suit and his legal representatives having not been brought on record. The important distinction in the circumstances is, that consequence depend upon the fact whether suit could continue against remaining defendants. No question of an effective joint decree in favour of deceased-defendant could have arisen. The real question whether in that circumstances, the suit abated as a whole or could the suit proceed against the remaining defendants at that stage was never in issue before this Court in the above case. The facts are clearly distinguishable. 13. The answer to the question raised in the present case depend on whether any valid decree could have been passed against deceased-defendant, unless his legal representatives having not been brought on record and if, without that fact being brought to the notice of the Court, the court had passed a decree against the deceased-defendant as well as alive defendant, whether it can be said that the suit as a whole ought to have been dismissed? 14. In my opinion, answer to this would depend on the answer to the question whether the suit as framed could be validly continued against the remaining defendants alone and a valid decree could be passed against the remaning defendants alone, even in the absence of deceased-defendant, against whom, of course, the decree would be nullity? 15. There is a clear distinction between a suit and an appeal in this context. In a suit, the nature of abatement depends upon the relief involved in the suit; whereas, in an appeal, the nature of abatement will have to be decided upon the nature of relief against the decree awarded. 15. There is a clear distinction between a suit and an appeal in this context. In a suit, the nature of abatement depends upon the relief involved in the suit; whereas, in an appeal, the nature of abatement will have to be decided upon the nature of relief against the decree awarded. If this distinction is borne in mind, there is no difficulty in coming to the conclusion that where liability sought to be enforced against the defendants is joint and several and suit can be brought against one or more of the co-promisors, without impleading the others, the suit to enforce such liability does not abate in toto, on the death of one of the co-promisors because, against each or any one it could have been separately instituted initially and could have been decreed by the court on the plaintiffs proving his claim. As I have, noticed above, there cannot be any two opinion about the fact that the claim founded on the pro-note executed by the co-defendants and liability thereunder was joint and several and which was independently enforceable, against any of them without impleading the other. In that view of the matter, the relief which was sought in the plaint remained un-affected on account of death of one of the co-promisors and the suit could have been continued against the remaining defendants. A valid decree could have been passed only against the remaining defendants. The fact that the trial court had passed a decree against the dead person also does not confer any right for or against all persons, because, the decree against the dead person is nullity and raises no ground for abatement of the proceedings. Really speaking, no question of abatement of the appeal or suit arise in this case. 16. 1968 Punjab and Haryana 340 (supra) is also clearly distinguishable and does not apply to the facts and circumstances of present case. 17. All the precedents to which learned counsel for the appellants had adverted to, are of little assistance in the present case. 18. More apposite principle applicable in the present circumstances, is the one which is enunciated in Municipal Board, Lucknow V. Pannalal and others (6), which was a case where the defendants liability was joint and several, which was in issue in the suit. 18. More apposite principle applicable in the present circumstances, is the one which is enunciated in Municipal Board, Lucknow V. Pannalal and others (6), which was a case where the defendants liability was joint and several, which was in issue in the suit. One of the respondent-defendants died after filing of the appeal and his Legal Representatives having not been brought on record, the question of abatement of the appeal as a whole was raised before their Lordships of Supreme Court. Their Lordships of the Apex Court observed as under :— "Where in an appeal by a Municipal Board in a suit against several defendants for accounts, one of the defendant -respondents dies and the appeal abates against him, the appeal as a whole does not abate, as the remaining respondents could be individually sued for rendering accounts and for recovery of the amount due from them." 19. This principle applies fully to the present set of facts. I, therefore, answer to the first substantial questions of law in favour of the plaintiff and against the defendants; and, held that even after the death of Mana son of Goma, the suit could continue against the co-defendant even if the suit was filed jointly against all the defendants, because the liability of which the suit was filed, instituted against any of them individually. Till that time, no joint decree had come into existence, so as to crystallize into any indivisible or inseparable joint right, nor any such joint decree could have come into existence after the death of Mana son of Goma, during the pendency of suit itself, because, no decree could at all have been passed against or in a favour of a dead person. 20. 20. So far as the second substantial question of law is concerned, it can only be said that the findings arrived at by the first appellate court that in the facts and circumstances of the case, it cannot be said that the plaintiff was carrying on business of money-lending after appreciation of evidence and applying the legal principle as enunciated in Gaurishankars case (supra), the findings of fact is un-assailable in the second appeal, as no ground which could vitiate the findings of fact, about the plaintiff having been held not to be a money-lender, have been made out and accepting that finding of fact to be correct, no relief on that ground could also be given to the defendant-appellants. 21. I, accordingly, dismiss the second appeal and affirm the judgement and decree passed by the first appellate court. 22. There will be no order as to costs.