ORDER This First Appeal has been filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 20th September 1977 passed in Partition Suit No. 29/4 of 1975/1977 by learned 4th Additional Subordinate Judge, Gopalganj, whereby the aforesaid partition suit brought by the plaintiffs-respondent 1st party herein was decreed with costs. 2. By office notes dated 26.02.2014, it has been pointed out that this Appeal has become incompetent in view of its abatement against the heirs and legal representatives of some of the deceased respondents. Therefore, competency matter of the present First Appeal was placed for consideration before the Bench. 3. I heard learned counsel appearing on behalf of the appellants at length on the question of competency of the present Appeal. However, none appeared on behalf of the respondents. 4. It is not under dispute that by the office notes dated 04.04.2000, it was pointed out that the Process Server reported that respondent nos. 10 and 11 are dead. In that view of the matter, by order dated 04.05.2000 passed by the learned Lawazma Board, two weeks’ final time was granted to the appellants for taking steps for substitution vice deceased respondent nos. 10 and 11, subject to law of limitation. Admittedly, the aforesaid order dated 04.05.2000 was not carried out by the appellants, which finds mentioned in the order dated 05.07.2000 passed by learned Lawazma Board. Consequently, when the matter was placed for consideration before a Bench of this Court, by order dated 10.08.2000, a note of abatement was recorded against the heirs of the deceased respondent nos. 10 and 11. 5. It is also not under dispute that more than 13 years have already elapsed, since the aforesaid order dated 10.08.2000 was passed by a Bench of this Court, yet no steps have been taken by the appellants for setting aside the abatement of the Appeal vice deceased respondent nos. 10 and 11. Apparently, the present Appeal became incompetent to that extent in the year 2000 itself. 6. Again by office notes dated 22.01.2007, it was pointed out that respondent no. 8, as per the report of the Process Server, is reported to have died during the pendency of the Appeal. By order dated 26.04.2007 passed by the learned Lawazma Board, four weeks’ final time was granted to the appellants for filing substitution petition vice deceased respondent no. Again by office notes dated 22.01.2007, it was pointed out that respondent no. 8, as per the report of the Process Server, is reported to have died during the pendency of the Appeal. By order dated 26.04.2007 passed by the learned Lawazma Board, four weeks’ final time was granted to the appellants for filing substitution petition vice deceased respondent no. 8, subject to limitation, if any. The aforesaid order dated 26.04.2007 was not carried out, which finds mentioned in the order dated 18.05.2011 passed by the learned Lawazma Board. Accordingly, the matter was placed for consideration before the Bench. By order dated 23.06.2011, a Bench of this Court recorded that this Appeal has abated as against the legal representatives of the deceased respondent no. 8. More than two and half years have elapsed since the aforesaid order dated 23.06.2011, yet till date no petition has been filed on behalf of the appellants for setting aside the abatement of the Appeal vice deceased respondent no. 8. Apparently, this Appeal has become incompetent to that extent. 7. In the aforesaid undisputed factual matrix, this Appeal has been placed for consideration before this Bench as to whether the whole Appeal has become incompetent, as this First Appeal arises out of a judgment and decree passed in a Partition Suit. 8. Learned counsel appearing on behalf of the appellants submitted that the respondent nos. 8, 10 and 11 were the non-contesting defendants in the trial court, as they had not filed their written statement. Therefore, according to him, in terms of Order XXII Rule 4(4) of the Code of Civil Procedure, the appellants are/were not required to take steps for substitution of the legal representatives of the aforesaid deceased respondents. By referring to Order XLI Rule 33 of the Code of Civil Procedure, it was also submitted that the Appellate Court is competent to pass any appropriate decree in the present Appeal, even if steps have not been taken by the appellants for substituting the heirs and legal representatives of the deceased respondent nos. 8, 10 and 11. In support of his above contention, he has placed reliance on a judgment of the Hon’ble Apex Court in the case of Sushil K. Chakravarty (D) Thr. LRs. V. M/s. Tej Properties Pvt. Ltd. ( AIR 2013 SC 1732 = (2013) 9 SCC 642 ). 9. 8, 10 and 11. In support of his above contention, he has placed reliance on a judgment of the Hon’ble Apex Court in the case of Sushil K. Chakravarty (D) Thr. LRs. V. M/s. Tej Properties Pvt. Ltd. ( AIR 2013 SC 1732 = (2013) 9 SCC 642 ). 9. This Court is afraid that the submissions made on behalf of the appellants are misconceived and untenable. Admittedly, the present Appeal arises out of a judgment and decree passed in a Partition Suit. The plaintiffs as also the defendants have been held to be the descendants of their common ancestor. All of them have been held to be co-owners with respect to the suit properties. Every co-owner has a right to possession and enjoyment of each and every part of the property unless a partition has taken place. It is also well settled that in a Partition Suit, all the co-owners are necessary parties and, in absence of any of them, the Suit and the Appeal may fail. Apparently, the present First Appeal has abated vice the deceased respondent nos. 8, 10 and 11. The suit property to the extent of decree passed in favour of the aforesaid deceased respondent nos. 8, 10 and 11 have devolved upon their heirs and legal representatives, which have attained its finality. Admittedly, those heirs and legal representatives have not been brought on record. 10. The submissions of the learned counsel that the aforesaid deceased respondent nos. 8, 10 and 11 were non-contesting defendants in the court below; therefore, the appellants are not required to file substitution petition in terms of Order XXII Rule 4(4) of the Code of Civil Procedure also appears to be misconceived and not tenable. In order to appreciate the point, it would be relevant to reproduce Order XXII Rule 4(4) of the Code of Civil Procedure, which reads as follows:- “4(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.” 11. From a plain reading of the aforesaid provisions, it is apparent that even for seeking exemption from the necessity of substituting the legal representatives of non-contesting deceased defendants / respondents, a petition is required to be filed by the plaintiff – appellant. Only then, a court, in appropriate case, may exempt the plaintiff / appellant from the necessity of substituting the legal representatives of such non-contesting defendants / respondents. In absence of any such petition, by virtue of the provisions contained in Order XXII Rule 4(3) of the Code of Civil Procedure, a Suit / Appeal abates as against the deceased defendants / respondents by operation of law. Abatement takes place automatically after expiry of the period of limitation. No formal order is required to be passed. 12. For coming to above conclusions, this Court finds support from a recent judicial pronouncement of the Hon’ble Apex Court in the case of Budh Ram Vs. Banshi [ (2010) 11 SCC 476 ]. For better appreciation, paragraphs 11, 17 and 18 of the aforesaid case, which squarely covers the present Appeal, are reproduced herein below:- “11. The provisions of Order 22 Rule 4(4) CPC provide that in case, the deceased defendant did not contest the suit and did not file a counter-affidavit, the substitution may not be warranted. In the instant case, the High Court repelled the submission regarding application of Order 22 Rule 4(4) CPC on the ground that the said provision requires the presentation of an application before the Court, before it pronounces its judgment for seeking such a relief and once such an application is allowed, in that case, it can only be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as if it was pronounced before the death had taken place. This view stands fortified by the judgments of this Court in Zahirul Islam v. Mohd. Usman and T. Gnanavel v. T.S. Kanagaraj. Thus, it has rightly been held by the High Court that the provisions of Order 22 Rule 4(4) CPC were not attracted in the facts of this case.” ….. ……. …….. ……. ….. ……. …….. ……. “17. This view stands fortified by the judgments of this Court in Zahirul Islam v. Mohd. Usman and T. Gnanavel v. T.S. Kanagaraj. Thus, it has rightly been held by the High Court that the provisions of Order 22 Rule 4(4) CPC were not attracted in the facts of this case.” ….. ……. …….. ……. ….. ……. …….. ……. “17. Therefore, the law on the issue stands crystallized to the effect that as to whether non-substitution of LRs of the respondent-defendants would abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not interdependent upon one or the other, nor the parties have conflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a continuity of suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment/decree passed in the proceedings vis-à-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test.” “18. The instant case requires to be examined in view of the aforesaid settled legal propositions. Every co-owner has a right to possession and enjoyment of each and every part of the property equal to that of other co-owners. Therefore, in theory, every co-owner has an interest in every infinitesimal portion of the subject-matter, each has a right irrespective of the quantity of its interest, to be in possession of every part and parcel of the property jointly with others. A co-owner of a property owns every part of the composite property along with others and he cannot be held to be a fractional owner of the property unless partition takes place.” 13. The reliance placed by the learned counsel appearing on behalf of the appellants on the judgment of the Hon’ble Apex Court in the case of Sushil K. Chakravarty (Supra) is completely misplaced. The reliance placed by the learned counsel appearing on behalf of the appellants on the judgment of the Hon’ble Apex Court in the case of Sushil K. Chakravarty (Supra) is completely misplaced. In the aforesaid case, a petition under Order XXII Rule 4(4) of the Code of Civil Procedure was filed on behalf of the plaintiff and thereafter the matter had proceeded ex parte without bringing the legal representatives of the deceased defendant on record, which was upheld by the Hon’ble Apex Court. Hence, the principles enunciated therein in that case will not salvage the case of the appellants in the present Appeal. In fact, in view of the law laid down by the Hon’ble Apex Court in the cases of The State of Punjab v. Nathu Ram ( AIR 1962 SC 89 ), Ram Sarup v. Munshi & Ors. ( AIR 1963 SC 553 ), Rameshwar Prasad & Ors. V. Shambehari Lal Jagannath & Anr. ( AIR 1963 SC 1901 ) and in view of recent judicial pronouncement by the Hon’ble Apex Court in the case of Budh Ram (Supra), the present First Appeal, as a whole, has become incompetent, in view of its abatement against the heirs and legal representative of the deceased respondent no. 8, 10 and 11, and cannot proceed further. 14. For the reasons recorded above, this Appeal, as a whole, has to fail and is accordingly dismissed, but there shall be no order as to costs.