JUDGMENT 1. - This civil misc. appeal arises from the judgment dated Feb.8,1995 passed by the Additional District Judge (Special Judge Dacoity Affected Area) Karauli Against the Order dated 8.2.1995 of Shri S.C. Gupta, Additional District Judge (Special Judge Dacoity Affected Area) Karauli. whereby the appeal of respondent Bundu Khan preferred against the judgment and decree dated October 22, 1993 of Additional Munsif Karauli was allowed and the case was remitted to the trial court for deciding the question pertaining the abatement of suit in respect of death of Smt. Geeta Devi.BACK GROUND FACTS: 2. The facts of the case lie in a short compass. The plaintiff appellants (for short the plaintiff) along with Smt. Geeta Devi (since deceased) instituted a suit for declaration and ejectment against the defendant respondent (for short the defendant) in the trial court with regard to shop in dispute. The ejectment was prayed on the ground of denial of title and default in making payment of' rent. The declaration sought was that collusive sale-deed dated April 15, 1955 be declared as null and void. The suit was decreed vide judgment and decree dated October 12, 1993. The defendant preferred appeal. During the pendency of the appeal an application was filed by the defendant on November 3, 1993 stating therein that Smt. Geeta Devi expired and this fact came to the knowledge of the defendant on November 1, 1993. It was prayed that Brij Mohan Sharma, the husband of Smt. Geeta Devi be taken or record tin the capacity of her legal representative. An application was also moved by the husband, sons and daughter of Smt. Geeta Devi on November 6, 1993 and the appellate court deleted the name of Snit. Geeta and substituted Shri Brij Mohan, Hamendra, Sandeep and Girija as legal representative of her. Amended cause title of the appeal was also filed on November 16, 1993. 3. The defendant on November 16, 1993 moved another application to the effect that on snaking enquiry he came to know that Stilt. Geeta Devi died on November 4, 1990 i.e. during the pendency of the suit. Along with the application her death certificate was also filed. It was prayed that since, during the pendency of the suit, legal representatives of Smt. Geeta Devi were not brought on record, the suit had abates and the judgment and decree of the trial court deserve to be set aside. Along with the application her death certificate was also filed. It was prayed that since, during the pendency of the suit, legal representatives of Smt. Geeta Devi were not brought on record, the suit had abates and the judgment and decree of the trial court deserve to be set aside. 4. The plaintiffs filed reply stating therein that the suit had not abated as the plaintiffs were the joint owners and right to sue survived to the remaining co- owners who had no objection to the proceedings of the suit being taken by the remaining plaintiffs. The plaintiffs under bonafide ignorance of fact about the substitution could not move application. Being a procedural error it did not affect the validity of the decree passed by the trial court on merits. 5. The appellate court vide order dated December 21, observed that the question whether the suit had abated or not would be decided at the time of hearing the appeal. Against the said order defendant preferred revision and this court vide order dated February 23, 1994 directed that application filed by the defendant under order 22 rule 4 CPC be decided and along with it question of abatement also be taken up. The appellate court vide order dated February 5, 1995 accepted the appeal and set aside the judgment and decree of the trial court as indicated hereinabove.RIVAL CONTENTIONS: 6. Mr. N.K. Joshi, learned counsel for the plaintiffs canvassed that it is legally settled that in case of co-owners, one or more co-owners can bring a suit and as such the suit could have been very well continued by the surviving plaintiffs who were co-owners and the death of Smt. Geeta did not have the effect of abatement of the suit especially since the legal representatives of Smt. Geeta had agreed to the continuation of the suit by the surviving plaintiffs. The decree was passed on merits and the defendant cannot deprive the plaintiffs of the fruit of the decree on the basis 'of shear technicality. The legal representatives of Smt. Geeta were already taken on record by the appellate court and the defendant was estopped from raising the objection in respect of abatement again. Mr. Joshi, learned counsel placed reliance on the following authorities. (i) Sri. The legal representatives of Smt. Geeta were already taken on record by the appellate court and the defendant was estopped from raising the objection in respect of abatement again. Mr. Joshi, learned counsel placed reliance on the following authorities. (i) Sri. Ram Pasricha v. Jagan Nath ( AIR 1976 SC 2335 ) (ii) Smt. Kanta Goel v. B.P. Pathak ( AIR 1977 SC 1599 ) (iii) Himangshu Bhusan Kar v. M.M. Saha (AIR 1954 Calcutta 205) (iv) Sahdeo Singh v. Ram Chhabila (AIR 1978 Patna 258) (v) Gaja Nand v. Sardar Mal ( AIR 1961 Raj. 223 ) (vi) Kesri Chand v. Chand Mal (AIR 1959 Rajasthan 58) . 7. On the other hand Mr. S.M. Mehta, learned counsel for the defendant supported the judgment of the court below and placed reliance on the following: (i) Achhar Singh v. Smt. Ananti (AIR 1.971 P & H 477) (ii) Ram Sewak v. MIs. Deoratikuer (AIR 1962 Patna 178) (iii) Kauai Lal Manna v. B. Santra (AIR 1970 Calcutta 99) (iv) Chulhiya v. Narpat Das (AIR 1973 Patna 399) (v) Guru Charan Singh v. Gorakh Nath (AIR 1966 Patna 323) (vi) Udai Ram v. D. Chand ( AIR 1994 Raj. 187 ) , 8. The question springing for consideration in this appeal is whether a decree passed in favour of a deceased co- landlord jointly with other co-landlords is a nullity ?STATUTORY BACK GROUND 9. Before adverting to the rival contentions, it is necessary to refer the relevant .statutory provisions. Relevant part of order 22 rule 2 CPC provides that: "Whose there are more plaintiffs than one and any of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs 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 serving plaintiff or plaintiffs." The language clearly contemplates a case where the right to sue or the cause of action does not die with the deceased plaintiff but survives his death and it survives i.e. passes on such death to the remaining plaintiff or plaintiffs alone. 10. 10. Himangshu v. Manindra Mohan (supra) was the case where Calcutta High Court observed thus: "It is true that there was no note made as contemplated by rule 2 of order 22 as the fact of death was not brought to the notice of the court when it passed the decree. That, however, is a mere irregularity and cannot have the effect of making the decree as one without jurisdiction. It is also well settled that, generally speaking a decree passed in favour of a dead person is not a nullity although a decree made against a dead person is a nullity; and nothing has transpired in this case which would take it out of the general rule." 11. In Sri Ram Pasricha's case (supra) question arose for decision was whether a land lord who was a co-owner of the premises with others was `The owner' within the meaning of section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956. Their Lordships of the Supreme Court observed thus: "We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of property is." 12. In Smt. Kanta Goel's case (supra) the Apex Court of the country propounded thus: "Where a landlord who had let out his premises to a tenant, dies and his heirs succeed to his estate, one co- heir to whom the rent is being paid by the tenant and who receives it on behalf of the estate, would be landlord for the purposes of Delhi Rent Control Act, 1958. The co-heirs constituted the body of landlords and, by consent implicit or otherwise, of the plurality of land lords, one of them representing them all was collecting rent. In short he functioned for all practical proposes as the land lord and was therefore entitled to institute proceedings for eviction against the tenant qua landlord." 13. Sahdeo Singh v. Ram Chhabila Singh (supra) was the case where Patna High Court observed that where during pendency of a suit by co-owners for declaration of title and possession against trespassers one of the co-owner dies the suit will not abate for non-substitution of his legal representatives for the reason that suit is maintainable even by some only of the co-owners." 14. Gajanand v. Sardar Mal (supra) was the case where the Division Bench of this Court, (Flon'ble I.N. Modi and D.M. Bhandari JJ.) held that "when the deceased plaintiff died before the institution of the suit, the two remaining partners could bring a suit for the enforcement of their claim against the defendant in their individual names and it does not make any difference in this case if the deceased died during the pendency of the case. The word `alone' in order 22 rule 2 signifies only that the right to sue should survive to the surviving plaintiff or plaintiffs without joining any other partner. It does not say that no one else should be entitled to the estate of the deceased, The remaining plaintiffs therefore can continue the suit and there is no necessity of the legal representatives of deceased to be brought on record." 15. Kesri Chand v. Chanamal (supra) was the case where this court observed thus: "The suit was originally brought by 4 plaintiffs. According to the case put forward in the plaint they are the joint owners of the enclosure. Amba Lal plaintiff died. His heirs are his sons. They have not been impleaded. The appeal accordingly abates so far as Amba Lal is concerned. On behalf of the defendants it was argued that the right to sue does not survive to the remaining plaintiffs. In my opinion any of the plaintiffs could have maintained the present suit for enforcing his own right of way against the defendants without impleading the other plaintiffs. The right to sue accordingly survives to the - remaining plaintiffs". 16. Achhar Singh v. Smt. Ananti (supra) was the case where it was held by the Punjab & Haryana High Court that "in an appeal filed against an appellate decree which was a nullity in that it was passed in ignorance of the death of one of the defendant during the pendency of that appeal and that appeal had abated in toto, the proper course for the second appellate court is to set aside the decree and remand the case to the lower court keeping it open to the parties concerned to take steps to get the abatement set aside if they were entitled to do." 17. In Ram Sewak v. Mst. In Ram Sewak v. Mst. Deorati (supra) it was indicated by the Patna High Court that "the effect of non- substitution of the widow before the final decree is to render the decree null and void, because a decree either for or against a dead person is absolutely ineffectual and invalid. 18. Kanailal Manna v. B. Santra (supra) was the case where the Division Bench of Calcutta High Court observed that where one of the plaintiffs dies even before the appeal filed against a joint decree passed in their favour is heard by the lower appellate court and the court in ignorance of the death, dismisses the appeal passes a decree, the decree abates and cannot be considered in law to be effective in any way. The High Court in appeal against such a decree cannot itself set aside the abatement nor it can affirm the decree passed by the trial court. The proper procedure to be followed by the High Court is to set aside the ineffective decree and remand the case to the court where abatement has taken effect, keeping it open to the parties to move that court for an opportunity to have the abatement set aside if the parties could satisfy it that they are so entitled in law." 19. Mt. Chulhiya v. Nanipat Das (supra) was the case where. Patna High Court laid down that where all the heirs of the deceased are not brought on record and some deliberately left out, the heirs who have been substituted cannot represent the entire estate of the deceased and the suit in its entirely abated for want of substitution of left out heirs. 20. Guru Charan Singh v. Gorakh Nath (supra) was the case where Patna High Court held thus, "it appears to be that the decree of the two courts below must. be set aside on the preliminary ground that one of the defendants had died during the pendency of the suit in the trial court and the suit had proceeded to judgment and decree in his absence." 21. be set aside on the preliminary ground that one of the defendants had died during the pendency of the suit in the trial court and the suit had proceeded to judgment and decree in his absence." 21. Udai Ram v. Dharam Chand (supra) was the case where this court (Hon'ble R. Balia J. as he then was) propounded that 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 against the dead person. The proper course in such a case is to set aside the decree and remand the case to the court where abatement had taken place leaving the parties to take necessary steps to have the . effect of abatement set aside if they can satisfy the court."CONCLUSION 22. 1 have bestowed my careful thought and consideration on the rival contentions of the learned counsel for the parties. 23. Indisputably the lower appellate court deleted the name of Smt. Geeta Devi and substituted the names of heir legal representatives in the memo of appeal and amended cause title of the appeal was also filed on November 16, 1993. On the same day an application was moved by the defendants that Smt. Geeta Devi died during the pendency of the suit and the suit stood abated. The plaintiffs in their reply averred that suit had not abated as right to sue survived to the remaining co-owners who had no objection to the proceedings of the suit being taken by the remaining plaintiffs. 24. The word `alone' in order 22 Rule 2 CPC signifies that the right to sue should survive to the surviving plaintiff or plaintiffs. The remaining plaintiffs therefore, can continue the suit and there is no necessity of the legal representatives of the deceased to be brought on record. 25. 24. The word `alone' in order 22 Rule 2 CPC signifies that the right to sue should survive to the surviving plaintiff or plaintiffs. The remaining plaintiffs therefore, can continue the suit and there is no necessity of the legal representatives of the deceased to be brought on record. 25. The principle that is deducible from the authorities mentioned herein above is that if the suit originally brought by more plaintiffs in the capacity of joint owners of the property and during the pendency of suit one of the plaintiffs dies and his heirs are not brought on record, the suit so far it relates to the deceased plaintiff, shall abate, but the other plaintiffs can proceed with the suit for enforcing their own rights as right to sue survives to them. There is no necessity of the legal representatives of the deceased to be brought on record. The co-owner of the property as much as an owner of the entire property as any sole owner of a property is. The co-owners constitute the body of landlords and, by the consent implicit or otherwise, of the plurality of landlords, one of them represents all. He functions for all practical purposes as the landlord and therefore, is entitled to continue proceedings for eviction. 26. The authorities cited by the learned counsel for the defendants are distinguishable. 27. In Achhar Singh's case (supra) a decree was passed in ignorance of the death of one of the defendants during the pendency of appeal. In Ram Sewak's case (supra) the provisions contained in order 22 rule 2 were not appreciated. The court restricted only to the appreciation of the provisions of order 22 rule 10 and 11. A perusal of the facts of the said case does not indicate as to whether right to sue had survived in the remaining plaintiffs ? In Kanai Lal case (supra) it was propounded that neither court of appeal can itself set aside the abatement nor can affirm the decree passed by the trial court. The proper procedure to be followed is to set aside the ineffective decree and remand the case to the court where abatement had taken affect, keeping it open to the parties to move that court but in the case on hand as already stated, no abatement had taken place. The ratio of Mst. The proper procedure to be followed is to set aside the ineffective decree and remand the case to the court where abatement had taken affect, keeping it open to the parties to move that court but in the case on hand as already stated, no abatement had taken place. The ratio of Mst. Chulhiya's case and Guru Charan Singh's case (supra) is also not applicable in the case on hand. In Udai Ram's case (supra) a decree was passed in ignorance of death of one of the defendants respondent. In that case question of appreciation of the provisions contained in order 22 rule 2 CPC was not involved therefore, ratio of Udai Ram's case is also not applicable in the case on hand. 28. The court below to my mind has not properly appreciated the provision contained in order 22 rule 2 CPC and committed illegality in remanding the case to the trial court. 29. Consequently, I allow this appeal and set aside the impugned order, I hold that right to sue survives in the remaining plaintiffs appellants in view of the provisions contained in order 22 rule 2 CPC. The lower appellate court has already brought the legal representatives of Smt. Geeta Devi deceased on record and amended cause title has already been filed. Therefore, I directed that the appeal shall be decided by the lower appellant court expeditiously. Costs easy.Appeal Allowed. *******