JUDGMENT Hon’ble S.U. Khan, J.—Heard Sri Sudeep Harkauli and Sri P.C. Jain, learned counsel for the petitioner and Sri Ramendra Asthana, learned counsel for respondent No. 3. 2. Petitioner instituted O.S. No. 127 of 1971 against his father (defendant No. 1), uncle Awadesh Narain Singh (defendant No. 2) and nine others. The suit was for cancellation of certain sale-deeds executed by father and uncle of the petitioner. Some sale-deeds were executed in favour of defendant Nos. 7 and 8, Giriraj Singh and Shiv Nath Singh, who are respondent Nos. 2 and 3 in this writ petition. His suit was decreed in 2008. Against the said decree, both Giriraj Singh and Shiv Nath Singh filed Civil Appeal No. 158 of 2008. The appeal is pending before A.D.J. Court No. 11, Agra. In the appeal plaintiff petitioner was made respondent No. 1 and other defendants were made proforma respondents. 3. Three proforma respondents in the appeal i.e. respondent No. 3/6, respondent No. 6/2 and respondent No. 7 died in 2009-2011. No substitution application was filed. Plaintiff respondent No. 1 filed an application numbered as 40-ka praying for dismissal of the appeal as abated. Appellants respondent Nos. 2 and 3 in this writ petition filed objections stating therein that respondent No. 3 had not filed any written statement before the trial Court and his legal representatives had also not filed written statement, that legal representatives of respondent No. 6/2 were already on record as other proforma respondents in the appeal and respondent No. 7, Raghuvir Singh had already filed another appeal against the same decree of the trial Court which had been consolidated with the appeal in question. 4. The lower appellate Court rejected the objections of the petitioner and refused to abate the appeal through order dated 1.8.2012, which has been challenged through this writ petition. 5. In respect of Pradeep Kumar Rathaur, defendant No. 5/2 and respondent No. 6/2 in the appeal before the lower appellate Court, the lower appellate Court held that substitution application had been filed on 1.2.2012 showing date of his death as 4.11.2011 i.e. within time. 6. 5. In respect of Pradeep Kumar Rathaur, defendant No. 5/2 and respondent No. 6/2 in the appeal before the lower appellate Court, the lower appellate Court held that substitution application had been filed on 1.2.2012 showing date of his death as 4.11.2011 i.e. within time. 6. In respect of death of Smt. Rudra Bala, defendant No. 2/6 and respondent No. 3/6 in the appeal before the lower appellate Court, the lower appellate Court held that she had not filed any written statement before the trial Court hence by virtue of Order XXII Rule 4(4), C.P.C., the Court could grant exemption to the appellant from substituting her legal representatives. 7. In respect of Raghubir Singh, defendant No. 6/respondent No. 7 in the appeal before the lower appellate Court, the lower appellate Court held that he had separately filed appeal against the same decree. Raghubir Singh was also purchaser of separate property from father and uncle of the plaintiff petitioner like the respondent Nos. 2 and 3 in this writ petition. The lower appellate Court held that in respect of prayer for partition made in the plaint, respondent No. 7, Raghubir Singh was a formal party. 8. Learned counsel for the petitioner has argued that without there being any prayer exemption under Order XXII Rule 4(4), C.P.C. could not be granted. In this regard, reference had been made to Zahirul Islam v. Mohd. Usman, 2003 (1) SCC 476 and Budh Ram v. Bansi, 2010 AIR SCW 5071 : 2010 (11) SCC 476 . 9. Learned counsel for respondent No. 3 has cited the following authorities of the Supreme Court to contend that on the death of proforma party, respondent appeal does not abate and in any case entire appeal cannot be dismissed as abated due to death of some respondents if cause of action/relief claimed is separate. 1. Mangal Singh v. Smt. Rattno, AIR 1967 SC 1786 2. Budh Ram v. Bansi, 2010 AIR SCW 5071 : 2010 (11) SCC 476 10. In my opinion, in view of the above authorities cited by learned counsel for petitioner the view of the lower appellate Court that even without any application exemption could be granted under Order XXII Rule 4(4), C.P.C. to the appellants was erroneous. 11. However, in my opinion, in view of Order XLI Rule 4 read with Order XLI Rule 33, C.P.C., the appeal would not abate. 11. However, in my opinion, in view of Order XLI Rule 4 read with Order XLI Rule 33, C.P.C., the appeal would not abate. By virtue of Order XLI Rule 4, C.P.C. if a decree appealed from proceeds on any ground common to all the defendants any of the defendants may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favour of all the defendants. It was not mentioned in the suit that it was being filed for the benefit of any of the defendants also. Apparently all the defendants were interested in dismissal of the suit, even though there might be some hidden understanding. In such situation even if some of the defendants were not made parties in the appeal, it would not have made any difference. In this regard, reference may be made to the Supreme Court authority in “Bajranglal Shivchandrai Ruia v. Shashikant N. Ruia” AIR 2004 SC 2546 and several other authorities of the Supreme Court on the point discussed in the said authority particularly that of Mahaveer Pradad v. Jag Ram, AIR 1971 SC 742 . In the case of Mahaveer Prasad one of the three plaintiffs filed appeal against dismissal of the suit by the trial Court impleading the other plaintiffs as proforma respondents, one of whom died during pendency of appeal. The name of deceased plaintiff respondent was struck off on the application of the appellant without bringing on record her legal representatives. High Court held that entire appeal abated. Supreme Court reversed the said finding. In the said case, Supreme Court placed reliance upon an earlier judgment of Ratan Lal Shah v. Firm Lalmandas Chhadammalal and another, AIR 1970 SC 108 , wherein one of the two defendants had filed appeal impleading the other defendant as proforma respondent against appeal was dismissed for want of prosecution. High Court thereafter dismissed the entire appeal as not maintainable as the decree challenged in appeal was joint. However, Supreme Court reversed the said finding placing reliance upon Order XLI Rule 4, C.P.C. 12. This aspect has been considered in Ruia’s 2004 authority of the Supreme Court supra in paras 43 to 67 and almost all the previous authorities of the Supreme Court on the point have been discussed therein. Paras 44 and 49 to 52 of the said authority are quoted below: “44. This aspect has been considered in Ruia’s 2004 authority of the Supreme Court supra in paras 43 to 67 and almost all the previous authorities of the Supreme Court on the point have been discussed therein. Paras 44 and 49 to 52 of the said authority are quoted below: “44. In our view, this contention has no merit. Where there are several defendants, who are equally aggrieved by a decree on a ground common to all of them, and only one of them challenges the decree by an appeal in his own right, the fact that the other defendants do not choose to challenge the decree or that they have lost their right to challenge the decree, cannot render the appeal of the appealing defendant infructuous on this ground. In fact, Rule 4 and Rule 33 of Order XLI of the CPC are enacted to deal with such a situation. 49.In Ratanlal Shah v. Firm Lalmandas Chhadammalal and another, (1969) 2 SCC 70 , this Court had occasion to examine the scope of application of Order XLI Rule 4 of the CPC in a situation like the present one. In this case there was a joint decree against two defendants R and M. R alone appealed to the High Court by impleading M as second respondent in the appeal. M was not served with notice as a result of which the appeal came to an end as far as M was concerned. The High Court dismissed the appeal on the ground that the decree was jointly against both R and M, in a suit on a joint cause of action, the decree against M having become final, R could not be heard alone in the appeal. This Court reversed the judgment of the High Court by taking the view that the appeal could not be dismissed on the ground that M was not served, nor could the appeal be dismissed on the ground that there was a possibility of two conflicting decrees. Delineating the provisions of Order XLI Rule 4 of the CPC this Court said: “The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. Delineating the provisions of Order XLI Rule 4 of the CPC this Court said: “The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant.” 50. This Court reiterated its view in Karam Singh Sobti (supra) and held that even if it be assumed that R was negligent, on that ground he could not be deprived of his legal right to prosecute the appeal and to claim relief under Order XLI Rule 4 of the Code of Civil Procedure, if the circumstances of the case warrant it. The decree of the Trial Court proceeded on a ground common to M and R. In the appeal filed by R, he was denying liability for the claim of the plaintiffs in its entirety. Thus, it was held that this was essentially a case in which the Court’s jurisdiction under Order XLI, Rule 4, Code of Civil Procedure could be exercised. 51.This view was reiterated by this Court in Mahabir Prasad v. Jage Ram and others, (1971) 1 SCC 265 . It was a case in which the plaintiff Mahabir Prasad, his mother and his wife obtained a decree against the defendant Jage Ram and two others for a certain amount. Their application for execution was dismissed by executing Court. Mahabir Prasad alone preferred an appeal to the High Court and impleaded his mother Gunwanti Devi, and his wife Saroj Devi as party respondents. Saroj Devi died and the legal representatives were not brought on record within the period of limitation and her name was struck off from the array of respondents. The High Court dismissed the appeal on the ground that it abated in its entirety. Mahabir Prasad appealed to this Court. Allowing the appeal it was held by this Court : (vide para 4) “Order XLI Rule 4 Code of Civil Procedure, invests the Appellate Court with power to reverse or vary the decree in favour of all the plaintiffs or defendants even though they had not joined in the appeal if the decree proceeds upon a ground common to all the plaintiffs or defendants”. 52. 52. This Court in Mahabir Prasad (supra) distinguished the judgment in Rameshwar Prasad, (1964) 1 SCR 549, as a case in which all the plaintiffs whose suits had been dismissed had filed an appeal and thereafter one of them being dead and his heirs were not brought on record. While in the case before this Court, there was an order against all the decree holders but all of them had not appealed. The previous judgment in Ratanlal Shah (supra) was followed approvingly. Commenting on the judgment in Ratanlal Shah (supra) in the light of Order XLI Rule 4 of the CPC, this Court observed : (vide para 6) “Competence of the Appellate Court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost merely because of the person who was jointly interested in the claim has been made a party-respondent and on his death his heirs have not been brought on the record. Power of the Appellate Court under Order XLI, Rule 4, to vary or modify the decree of a Subordinate Court arises when one of the persons out of many against whom a decree or an order had been made on a ground which was common to him and others has appealed. That power, may be exercised when other persons who were parties to the proceeding before the Subordinate Court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents.” 13. Accordingly, in my opinion, there is no question of abatement of appeal due to death of the three respondents in the appeal before the lower appellate Court. The view of the lower appellate Court is therefore upheld even though on different reasoning. Writ Petition is dismissed. ——————