JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned District Judge, Sambalpur in Title Appeal No. 33 of 1995 reversing the judgment and decree passed by the learned Civil Judge, Sr. Division, Sambalpur in T.S. No. 26 of 1991. 2. The present appellants as the plaintiffs had filed the suit for declaration of their right, title and interest over the land described in schedule ‘A’ of the plaint, confirmation of their possession over the same and in the alternative for recovery of possession from the respondent-defendant. The trial court had decreed the suit by declaring the plaintiffs to be jointly having the right, title and interest over the suit land and confirming their joint possession. 3. The lower appellate court being moved by the aggrieved defendant has gone to hold the property in question to be the self acquired property of the father of respondent-defendant and accordingly, it has declared the respondent-defendant to be having the title and possession over the same. The appellant-plaintiffs thus having been non-suited have filed this second appeal under Section 100 of the Code of Civil Procedure (hereinafter in short called ‘the Code’). During pendency of this appeal, the appellant no. 3 having died, a petition for substitution of her legal representatives was filed which was numbered as Misc. Case No. 60 of 2010 wherein it was stated that the appellant no.3 had died in the year 1999 leaving behind Gokul Pradhan as her legal representative in whose favour the right to sue survives. The said petition stood dismissed by order dated 20.9.2010. So again Misc. Case Nos. 93 and 94 of 2011 were filed with the selfsame prayer for substitution of the legal representative of appellant no.3 stating the death of appellant no.3 to have taken place on 27.12.1997 which is during pendency of the first appeal and for condonation of delay in filing the said application. Be that as it may, this Court by order dated 6.5.2011 dismissed those petitions since no petition for restoration of earlier application for substitution of the legal representative of appellant no.3 had been filed. Thereafter, the appeal stood dismissed for non-prosecution. 4. Be that as it may, this Court by order dated 6.5.2011 dismissed those petitions since no petition for restoration of earlier application for substitution of the legal representative of appellant no.3 had been filed. Thereafter, the appeal stood dismissed for non-prosecution. 4. The CMAPL No. 148 of 2011 having been filed for readmission of the appeal, the appellant no.3 was shown as one of the petitioners and neither the legal representative of appellant no.3 was made a party as petitioner nor any step whatsoever in that regard has been taken therein. The CMAPL however has been allowed keeping the matter open as regards the abatement of the appeal as a whole in view of its abatement against appellant no.3. 5. Having heard the learned counsel for the parties at first on the question of abatement of the appeal, I now proceed to address the same first. The question at present falls for consideration as to whether the appeal can further proceed in the absence of the legal representative of appellant no.3 being there on record when the appeal has already abated against her. As already stated judgment and decree now impugned here in this appeal relates to the declaration of the right, title and interest of respondent-defendant and confirmation of his possession in so far as the suit land is concerned. 6. One of the tests as to whether an appeal as a whole abates or not is as to whether if the appeal succeeds there will be in existence, the conflicting decrees. If such be the position, then the appeal as a whole abates and not partially. The provisions of order 22 of the Code apply also to the appeals. Hence on the death of one of the several appellants, if right of appeal survives to the surviving appellants, the appeal may be proceeded with by them i.e. the surviving appellants. Where the right of appeal does not survive to the surviving appellants, the appeal will abate so far as the deceased appellant is concerned, if his legal representative is/are not brought on the record and if the case is such that it cannot be disposed of in the absence of legal representatives of the deceased appellant, the whole appeal would abate. Order – 41 rule -4 of the Code no doubt provides that where there are more plaintiff and more defendant than one in a suit and the decree is appealed against by one or some of them that proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiff or of the defendant may appeal from the whole decree, and there upon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. Provision of above order – 41, rule – 4 of the Code does not however override the provision of order – 22 rule -9 of the Code. These two rules have their play at different stages of the appeal, operate in different fields and provide for different contingencies. There also remains thus no inconsistency between the above two rules. This rule -4 of order -41 of the Code is an enabling provision and it is in the discretion of the appellate court to exercise the power in favour of non-appealing plaintiffs or defendants where the decree appealed from proceeds on any common ground to all the plaintiffs or defendants. 7. It has been held in case of Rameswar Prasad and Others Vs. Shambehari Lal Jagannath and Another; AIR 1963 SC 1901 that above rule applies to the stage when the appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against entire decree. In certain circumstances, he can take advantage of the provision or he may not. However, once the appeal is filed by all the plaintiffs, the provisions of this rule become unavailable. Order -22 of the Code on the other hand operates during the pendency of the appeal and not at its institution. If some parties dies during the pendency of the appeal his legal representatives must be brought on the record within time, otherwise the appeal of the deceased appellant will abate and this result cannot be jumped away having resort to rule – 4 of order 41 of the Code on the ground that the decree was based on common ground to all the appellants. Besides order – 41 rule – 4 of the Code has no application to dead persons; it is only applicable to living persons. Besides order – 41 rule – 4 of the Code has no application to dead persons; it is only applicable to living persons. It suggests that all the plaintiffs and defendants were alive, when the decree of the appellate court is passed. The wording of order – 41, rule – 4 of the Code is not applicable to a case when one of the parties as in the present case has died during pendency of the appeal. 8. In the Full Bench decision of the Patna High Court in case of Ramphal Sahu Vs. Satdeo Jha, AIR 1940 Patna 346, which has been followed by this Court as noted in case of Raghu Sutar Vs. Nrushngha Nath; AIR 1959 Orissa 148, it has been held that by reason of the provisions of order 22, rule 3 and 11 of the Code, the appeal in so far as it concerns the deceased appellant, abates and as the abatement if not set aside has the force of a decree, the matter becomes final as against the deceased appellant. There is nothing in order – 41, rule – 4 of the Code which permits a court to disturb the finality of the decree as against the deceased appellant. Where one of the appellant had died pending the appeal and his legal representatives were not brought on record, the decree being a joint one and part of the decree having become final by the reason of the abatement, the entire appeal must be held to have abated. 9. In case of Rameswar Prasad and Others Vs. Shambehari Lal Jagannath and Another (supra), the provisions of order-41, rule 33 of the Code were also considered and it has been held that the said provision is of no greater help to the contention that the appeal would continue even though the appeal has abated against one of them. The court observed that the discretionary power under the provision cannot be so exercised to nullify the affect of the abatement of the appeal, so far as the deceased appellant is concerned. The court observed that the discretionary power under the provision cannot be so exercised to nullify the affect of the abatement of the appeal, so far as the deceased appellant is concerned. In fact exercise of power in that way will lead to the existence of two contradictory decrees between the heirs of the deceased appellant and others; one passed by the appellate court and another to the contrary effect by the court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. The principles laid down in this case were considered and approved in subsequent decisions of the Supreme Court in case of Shree Chand and Others Vs. Jagdish Pershad Kishan Chand and Others; AIR 1966 SC 1427 and Rangaya Prasad Gupta and Others Vrs. Murali Prasad and Others, AIR 1972 SC 1181 . 10. The above being the position of law, in the present appeal since the legal representative of appellant no. 3 has not been brought on the record as party, now the judgment and decree as also the finding in particular as stated in the aforesaid para is binding upon the said legal representative of appellant no. 3 as those have attained finality so far as the said appellant no. 3 is concerned as if those stood confirmed in respect of said appellant no. 3 amounting as a decree of this Court. So in case, the second appeal is allowed to be continued by the remaining appellants and in the event of their success in the appeal, the decree declaring the right, title and interest of the respondent-defendant over the suit land and confirmation of his possession negating the claim of all the appellants as advanced jointly that it is the joint family property would continue to operate in full force against the legal representatives of appellant no. 3, whereas it would not be so and to the contrary in case of other appellants. The prayer of the appellants is for passing a decree jointly declaring their right, title and interest over the property. Therefore, in the event of the appeal being allowed at the instance of the remaining appellants, there would be two contradictory decrees in the same litigation with respect to the same subject matter. The prayer of the appellants is for passing a decree jointly declaring their right, title and interest over the property. Therefore, in the event of the appeal being allowed at the instance of the remaining appellants, there would be two contradictory decrees in the same litigation with respect to the same subject matter. A court should not be called upon to make two inconsistent decrees in respect of the same subject matter and in order to avoid that situation where conflicting decrees may be the outcome, there remains no alternative but to dismiss the appeal as a whole and in entirety. In the wake of the aforesaid discussions, it is held that this appeal is now incompetent for want of substitution of the legal representative of deceased appellant no. 3 and cannot proceed further for its disposal on merit in accordance with law. Accordingly, the second appeal abates as a whole. In view of the abatement of the entire appeal, I don’t wish to enter into the merit in answering the substantial questions of law which would be merely academic standing no more as the need in this appeal. 8. In the result, the second appeal fails and is hereby dismissed. No order as to cost.