JUDGMENT 1. :- Instant misc, appeal arises from the order dated May 3, 1989 of the learned Additional District Judge Kishangarhbas whereby the civil regular first appeal preferred by the defendants Daulat Ram, Shadilal and Lichhaman, calling in question the judgment and decree of the Munsif Magistrate Kishangarhbas, was ordered to be abated. 2. A few facts are necessary to be stated. Suit instituted by Smt. Basanti (since deceased) seeking permanent injunction against Daulat Ram, Shadi Lal and Lichhman was decreed by the court of learned Munsif Magistrate Kishangarhbas. Defendants Daulat Ram, Shadilal and Lichhaman preferred civil regular first appeal against the said judgment and decree dated April 2, 1985 before the learned appellate court on May 1, 1985. On May 7, 1988 plaintiff Smt. Basanti, who was the respondent in the said appeal, moved an application that defendant appellant Daulat Ram expired on November 4, 1986. As the legal representatives of Daulat Ram were not brought on record, the whole appeal abated. Another defendant appellant Shadilal (the appellant of this misc. appeal) submitted the reply to the application stating that Daulat Ram had no interest in the property in question. In the reply submitted before the trial court, Daulat Ram also pleaded this fact that he had no interest in the property. Therefore after his death it was not necessary to bring his legal representatives on record. One more application was also filed by the son of late Daulat Ram before the learned appellate court praying therein that name of Daulat Ram be removed from the array of the appellants as he had absolutely no interest in the appeal. 3. Learned appellate court vide its order dated May 3, 1989 allowed the application of Smt. Basanti filed on May 7, 1988 and while dismissing the application for removing the name of Daulat Ram from the array of the appellants, learned appellate court observed that appeal abated in toto.Against this order the present action for filing civil misc. appeal under Order 43 We has been resorted to by Shadi Lal. During the pendency of the appeal Smt. Basanti died and her legal representatives were brought on record. 4. Mr. R.K. Mathur, learned counsel for appellant Shadi Lal canvassed that learned appellate court committed illegality in abating the entire appeal. Aspect of survival of right to sue as enumerated in Order 22 Rule 2 Civil Procedure Code was not properly considered. During the pendency of the appeal Smt. Basanti died and her legal representatives were brought on record. 4. Mr. R.K. Mathur, learned counsel for appellant Shadi Lal canvassed that learned appellate court committed illegality in abating the entire appeal. Aspect of survival of right to sue as enumerated in Order 22 Rule 2 Civil Procedure Code was not properly considered. The plaintiff respondent Basanti in the plaint sought relief mainly against appellant Shadi Lal. She also referred this fact in her statement and the learned trial court in its judgment dated April 2, 1985 also held that the property in question related to appellant Shadi Lal only. Even in the report of Commissioner it was mentioned that wall East West of Smt. Basanti measuring 6.6." was adjoined to the wall of appellant Shadilal. 5. Mr. Ashok Gaur, learned counsel for the respondent No.1 on the other hand supported the impugned judgment and contended that decree passed by the trial court was joint and indivisible and appeal could not have been proceeded by the remaining appellants Shadilal and Lachhman. Therefore the entire appeal was rightly abated by the learned appellate court. Reliance was placed on the following: (1) State of Punjab vs. Nathu Ram ( AIR 1962 Supreme Court 89) (2) Union of India vs. Shree Rama Bohra ( AIR 1965 Supreme Court 1531) (3) Ramgaya Prasad Gupta vs. Murli Prasad ( AIR 1972 Supreme Court 1181) (4) Harihar Prasad Singh vs. Balmiki Prasad Singh ( AIR 1975 Supreme Court 733) (5) Gangadhar vs. Shri Ram Kumar ( AIR 1983 Supreme Court 1202) (6) United Bank of India vs. Smt. Kanan Baka ( AIR 1987 Supreme Court 1510) (7) Bakshish Singh vs. Arjan Singh [ (1996) 8 SCC 323 )] (8) Bhanwar Lal vs. Bhuli Bai AIR 1972 Rajasthan 203 (9) Phool Chand vs. Ghisi Lal (RLR 1984 page 132) (10) Noor Mohammed vs. Gulam Rasool (RLR 1992(1) page 492) (11) Mool Chand vs. Mohan (1987(1) RLR page 825) (12) Shakoor Khan vs. I Raam Mohan AIR 1977 Madhya Pradesh 187 . 6. I have given my anxious and thoughtful consideration to the rival contentions and carefully perused the case law cited at the Bar as well as the record. 7. State of Punjab vs. Nathu Ram (supra) is the basic authority in the matter of abatement of appeal or suit, wherein their Lordships of the Supreme Court propounded thus- "4. 6. I have given my anxious and thoughtful consideration to the rival contentions and carefully perused the case law cited at the Bar as well as the record. 7. State of Punjab vs. Nathu Ram (supra) is the basic authority in the matter of abatement of appeal or suit, wherein their Lordships of the Supreme Court propounded thus- "4. Suffice it to say that when Order 22 Rule 4 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 appeals against them. To say that the appeals against them abated is certain circumstances, is not correct statement. Of course the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal. 5. The same conclusion is to be drawn from the provisions of order 1 rule 9 of the Code which provides that no suit shall be defeated by reason of the mis-joinder of parties and the court may, in every suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it. It follows therefore that if the court ideal 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 only when it is not 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. (6) The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances where this is possible or is not possible." (emphasis supplied) 8. (6) The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances where this is possible or is not possible." (emphasis supplied) 8. On a conspectus of the case law cited by Shri Ashok Gaur, learned counsel the following principles are clearly discernible- (i) Courts will not proceed with an appeal- (a) when the success of appeals may lead to the courts coming toi decision which be in conflict with the decision between the appellant and the deceased respondent and the therefore which would lead to the court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court, and (c) when the decree against the surviving respondents if the appeal succeeds be ineffective, that is to say, it could not be successfully executed. (ii) Above three tests are not cumulative tests, Even if one of them is satisfied, the court may dismiss the appeal. (iii) If legal representative are necessary party or in their absence no effective decree can be passed or in their absence any decree is passed that can not be executed effectively or there is possibility of two inconsistent decrees that the whole appeal abates and the appeal will be held to be incompetent. Similarly no decree can be passed against a dead person as it will be a nullity and where there is a possibility of two inconsistent decrees in the suit the appeal will be abated as a whole. Further where the party concerned did not contest the suit and also not filed written statement the court can exempt bringing of L.Rs. of the deceased on an application or even on an oral request provided the L.Rs. are on record, may be in a different capacity. 9. The question that falls for consideration in the instant appeal is whether the appeal has abated for failure of the appellant Shadi Lal to implead the legal representative of another appellant Daulat Ram (deceased) who was the defendant in the civil suit. 10. are on record, may be in a different capacity. 9. The question that falls for consideration in the instant appeal is whether the appeal has abated for failure of the appellant Shadi Lal to implead the legal representative of another appellant Daulat Ram (deceased) who was the defendant in the civil suit. 10. To decide the question it is necessary to look the nature of the suit, the decree passed therein and the matter in issue in appeal in question, for, as observed by their Lordships of the Supreme Court in State of Punjab vs. Nathu Ram (supra) that the question whether a court can deal with an appeal in the absence of the legal representative of a deceased will depend essentially upon the facts of the case. 11. Admittedly suit for permanent injunction was instituted by plaintiff Basanti Devi against the defendants Shadi Lal, Daulat Ram and Lichhman. The suit was decreed and the defendants were restrained by the trial court from raising construction so as to obstruct the flow of water from the drains of the plaintiff's house. 12. Few peculiar circumstances of the civil suit may also be noticed. Daulat Ram, Shadilal and Lichhman had filed joint written statement in the trial court stating therein that towards the house of plaintiff, there was a 'chhapar' of Shadilal. Plaintiff Basanti in her statement before the court also admitted this fact. In the report of the Commissioner also it was mentioned that wall East-West measuring 6.6." belonging to Smt. Basanti was adjoined to the wall belonging to Shadi Lal. It appears that Daulat Ram was impleaded in the suit being the real brother of Shadilal. 13. Indisputably appeal was jointly filed by Shadi Lal, Daulat Ram and Lichhman as all of them were restrained by a decree of the trial court but in the facts and circumstances of the case, the learned appellate court could have dealt with the matter in controversy so far as regards the rights and interest of appellant Shadi Lal and the respondent Basantiexcluding another appellant Daulat Ram, who was dead. A close look at the pleadings reveals that Daulat Ram had no interest in the property in question. A close look at the pleadings reveals that Daulat Ram had no interest in the property in question. Son of Daulat Ram also moved an application before the learned appellate court for removing the name of Daulat Ram from the array of the appellants, on the ground that Daulat Ram had no interest in the appeal. I am of the considered view that legal representatives of Daulat Rain are not necessary party and in their absence if any decree is passed in the appeal it can not be executed effectively. There is no possibility of two inconsistent decrees in the absence of legal representatives of Daulat Ram.'If the appeal is dismissed by the appellate court, the decree of the trial court shall be in force and no construction can be raised as directed in the decree of the trial court. If the appeal succeeds, then also it is the appellant Shadil Lal who alone can raise construction as the chhapar adjacent to the house of plaintiff belongs to him. Rights of Daulat Ram or his legal representative are not at all affected by the decision of appeal therefore the appellate court can proceed with the appeal even in absence of Daulat Ram and appeal does not abate even if his legal representative were not brought oni record. 14. Learned appellate court did not properly appreciate the nature of the suit, the decree passed therein and the matter in issue in the appeal and committed illegality in passing the impugned order abating the appeal. 15. The instant appeal therefore succeeds and is hereby allowed. Impugned order of the learned appellate court is set aside. The application dated May 7, 1988 of the plaintiff stands rejected. Application submitted by the son of Daulat Ram is accepted and name of Daulat Ram is ordered to be removed from the array of the appellants. The civil regular first appeal is restored to its original number and is remitted to the learned court of Additional District Judge Kishngarhbas (Alwar) for deciding it on merits according to law. Record of the case be sent back forthwith to the learned Court of Additional District Judge Kishangarhbas, who shall make endeavour to dispose of the appeal expeditiously preferably within six months from the date of receipt of this order. Parties are directed to appear before the court of Additional District Judge Kishangarhbas on Sept 2, 1997. Record of the case be sent back forthwith to the learned Court of Additional District Judge Kishangarhbas, who shall make endeavour to dispose of the appeal expeditiously preferably within six months from the date of receipt of this order. Parties are directed to appear before the court of Additional District Judge Kishangarhbas on Sept 2, 1997. Costs easy.Appeal allowed. *******