JUDGMENT Arun Kumar Goel, J.(Oral): A suit was filed by respondents No. 1 to 4 against the present appellants as well as late Roop Ram for declaration to the effect that since they had purchased the land measuring 10-0-5 bighas, situate in Mauja Chanol, Pargana Nalli, Tehsi Kasauli, District Solan as per copy of jamabandi for the year 1984-85 from defendants No. 1 to 3 i.e. the present appellants vide registered sale deed No.29 dated 14-2-1977 and they were put in possession by the said defendants and since then they are in possession as owners of this land. Since the appellants were delaying the correction of revenue entries on one pretext or the other which continued in favour of appellants No. l to 3, whereas deceased Roop Ram was shown to be a tenant over one of the khasra numbers i.e. 402 and in these circumstances, a declaration was sought by respondents No. 1 to 4 and an injunction was prayed - against them from interfering over the suit land. 2. The said suit was contested and resisted by the present appellants as well as late Roop Ram wherein pleas of suit being not valued properly for purposes of court fee and jurisdiction, respondent Nos. I to 4 being stopped from filing the same on account of their act, conduct and acquiescence were raised. Possession of the respondents Nos. 1 to 4- plaintiffs was denied over the suit and. It was pleaded that consideration of Rs.5000/- had not been paid to defendants No 1 to 3. Mutation was only to be effected in favour of the respondents No 1 to 4 plaintiffs after they had paid the consideration of Rs.5000/-. 3. Parties went to trial on the aforesaid pleadings and the trial court decreed the suit of the respondents No. l to 4- plaintiffs against the appellants-defendants as well as deceased Roop Ram, who was arrayed as defendant No.4 in the suit. Against aforesaid judgment and decree dated 31 -5-1993 passed by Sub Judge First Class, Kandaghat, District Solan, Himachal Pradesh, all the appellants and late Roep Ram who were arrayed as defendants No. 1 to 4 filed a single appeal in the court of District Judge, Solan, which was registered as CA.No.35-S/I3 of 1993 on 27-8-1993. This appeal was dismissed vide judgment and decree passed by the lower appellate court on S-12-1995. This appeal was dismissed vide judgment and decree passed by the lower appellate court on S-12-1995. It is this judgment and decree passed by the first appellate court which has been questioned by the appellants in the present appeal, wherein Roop Ram original defendant No 4 has been arrayed as a proforma respondent, although he was arrayed as appellant No.4 before the lower appellate court. 4. By means of CMP (M) No.723 of 96, application under Order 22 Rules 4 and 9 read with Section 151 CPC and Section 5 of the Limitation Act, it was pointed out that Roop Ram proforma respondent No.5 in this appeal has since died on 14-4-1995, as such, his legal representatives need to be brought on record and it was pleaded that delay in filing application was neither intentional nor wilful as also the abatement, if any, was liable to be set aside. 5. When this CMP (M) No.723 of 96 was taken up for hearing, parties were not at variance that one of the appellants before the lower appellate court i.e. Roop Ram had died on 14-4-1995 i.e. during the pendency of the appeal. As a result of this, the consequence would be that the appeal hid in fact abated on the date of passing of the judgment and decree by the First Appellate Court as the legal representatives of the deceased appellant had not been brought on record unless of course the matter relating to abtatement had been considered and decided by the First Appellate Court which is not there in die present case. 6. It may be appropriate to point out in this behalf that when one of the several defendants against whom a decree was passed by the Court below had died during the pungency of the appeal, as in the present case and the legal representatives of such deceased appellant had not been brought on record of appeal in accordance with law, which fact is also not in controversy in the present appeal, the consequence of such in -action would be that the appeal before the First Appellate Court had already abated prior to ns being adjudicated on 8-12-1995. In these circumstances, it cannot be said that there is any lawful decree passed by the First Appellate Court as admittedly it was against a dead person. In these circumstances, it cannot be said that there is any lawful decree passed by the First Appellate Court as admittedly it was against a dead person. This position learned counsel for the appellants though did not concede specifically yet was also not in a position to controvert the same. 7. In the aforesaid circumstances, the question that arises is as to what course should be adopted by the courts in a given situation. The answer to this question would be that in - effective decree passed by the lower appellate court needs to be lit aside and appeal remanded to the said court keeping the opportunity open to the appellants to move the said court for setting aside the abatement in case the appellants arc in a position to satisfy the said court as they arc entitled in law to get the same set aside. 8. Even otherwise this matter need not detain us any further in view of decision of learned Single Judge of this court reported in case Jagan Nath & ors. v Ishwari Devi I.L.R. (Himachal Pradesh) (1988) (HC)-362. 9. As a result of the aforesaid discussion, judgment and decree passed by District Judge Solan in Civil Appeal No.35-S/13 of 1993 in appeal titled as Naresh & ors v. GangaRam & ors., is hereby set aside and it is further ordered that the appeal be restored to its original number by the sad court. While sending back the records of this case, original record of CMP (M) No.723 of 96 would also be sent to the First Appellate Court, who would thereafter consider the said application and would dispose of the same in accordance with law. 10. No costs. 11. Parties present before this Court are directed to appear before the District Judge, Solan on 23-6-1997. Registry will ensure that the records of the case reach the said court well before the date fixed. -