Judgment R. BALIA, J. ( 1 ) THIS defendants second appeal is against the judgment and decree passed by Additional District Judge, Chittorgarh on 11-12-1989 by reversing the judgment and decree passed by Munsif and Judicial Magistrate, Kapasan on 27-11-82. ( 2 ) FACTS relevance for the present purposes may be noticed. Dharamchand, respondent filed a suit for eviction against Udaram, Hazari and Mst. Sarju. The case of the plaintiff was that he purchased a suit property from the father of Udaram and Hazari and husband of Mst. Sarju in Samvat 2008 and let out the property to the vendors by a duly executed rent note. The trial Court while finding the execution of sale deed and rent note duly proved, dismissed the plaintiffs suit on the ground that as possession of the suit property was never delivered to the purchasers and the plaintiff has not been able to prove the nature of possession of the vendors prior to sale, it cannot be said that the vendors became tenant in the suit property. On appeal, the learned Additional District Judge, on the basis of finding recorded by trial Court about the execution of the sale deed and rent note, decreed the plaintiffs suit for eviction from the suit premises. Hence, this second appeal. ( 3 ) AT the outset, it was urged by the learned counsel for the appellant that before the lower appellate Court during the pendency of the appeal one of the defendants respondents Hazari died on 1-3-1984 but his legal representatives have not been brought on record at any time. The appeal before the Additional District Judge, Chittorgarh abated so far Hazari was concerned and as the decree of dismissal of the suit was joint and indivisible one, the appeal against remaining repsondents also could not have proceeded. He, therefore, contends that decree having been passed against dead person is nullity and cannot be sustained. ( 4 ) THE fact of death of one of the respondents before lower appellate Court on 1-3-1984 has not been disputed by the learned counsel for the respondent and this fact is also not in dispute that no application to bring legal representatives of deceased Hazari was made. However, it is not known, who are the legal representatives of the deceased Hazari. However, it is not known, who are the legal representatives of the deceased Hazari. It is also not known whether in the absence of any other legal representatives, or otherwise right to sue survive to the remaining defendant respondents. ( 5 ) THE consensus of legal opinion in such circumstances appears to be that where in an appeal a decree is passed in ignorance of death of one of the defendants respondents during the pendency of that appeal, the appeal abates agaisnt the dead person. The High Court in appeal against such a decree cannot itself set aside the abatement nor can it affirm the decree passed by the lower appellate Court. The proper course in such a case is to set aside the ineffective decree passed by the lower appellate Court and, remand the case to the Court where abatement has taken place leaving the parties to take necessary steps to have the effect of abatement set aside if they so desire and if they can satisfy the Court, that parties are entitled to get the abatement set aside under law. Reference in this connection may be made to Kanailal Manna v. Bhabataran Santra, AIR 1970 Cal 99 wherein a Division Bench of the said High Court opined:-"in such circumstances, in our opinion, the uniform procedure followed by the other High Courts as referred to hereinbefore should be accepted, namely the ineffective decree passed by the Court of appeal below should be set aside and the appeal should be remanded to the said Court, keeping it open to the appellants to move the said Court for an opportunity to have the abatement set aside if the appellants could satisfy the said court that they are so entitled in law. The decision was followed in Achhar Singh v. Smt. Anandi, AIR 1971 Punj and Har 477. In that case, after coming to the aforesaid conclusion, their Lordships referred to the Kanailal Mannas case and further observed as under:-"i am in respectful agreement with the principle enunciated by Anil K. Sen, J. and, therefore, I after setting aside the decree of the lower appellate Court as being ineffective and anullity, send the case back to the lower appellate Court where the respondent i. e. Smt. Anandi who was the appellant before the lower appellate Court, can take steps to set aside the abatement, if she is so advised. The lower appellate Court should decide the matter in accordance with law. " ( 6 ) KEEPING in view the aforesaid principles which are fully applicable to the facts of the present case, the decree passed by the Additional District Judge, Chittorgarh dated 11-12-1989 is set aside and the case is sent back to the lower appellate Court where during the pendency of that appeal Hazari, defendant respondent No. 2 had died resulting in abatement of appeal against him to enable the appellant, Dharamchand, before the Additional District Judge, Chittorgarh, to take steps to set aside the abatement if so advised. The lower appellate Court shall decide the matter in accordance with law. ( 7 ) THERE will be no order as to costs. The parties will appear before the lower appellate Court on 8th of April, 1994. Order accordingly.