Common-ground decrees and abatement: appellate relief may survive even if a respondent-decree-holder dies unrepresented.

Where a decree rests on a common ground affecting all parties, Order 41 Rule 4 allows appellate relief in an appeal by one decree-holder even if another respondent-decree-holder dies without substitution within limitation. The appeal does not abate in entirety merely because the deceased respondent was a joint decree-holder; the appellate court may still vary or reverse the decree on the common ground. No abatement also follows where one heir or legal representative is already before the court in another capacity and can be treated as representing the deceased estate. The High Court's dismissal on abatement grounds was set aside and the matter remanded.

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Issues: (i) whether an appeal by one decree-holder against a joint decree abates in its entirety when another respondent-decree-holder dies and his legal representatives are not brought on record within limitation; (ii) whether no abatement results where one of the heirs and legal representatives is already before the Court in another capacity.

Issue (i): Whether an appeal by one decree-holder against a joint decree abates in its entirety when another respondent-decree-holder dies and his legal representatives are not brought on record within limitation.

Analysis: Order 41 Rule 4 empowers the appellate court to reverse or vary a decree in favour of all persons affected when the decree proceeds on a ground common to all, and the power is not confined to cases where the other interested persons are left out of the appeal altogether. The mere fact that a joint decree-holder was impleaded as a respondent and later died does not, by itself, destroy the competence of the appeal or require total abatement if the appeal otherwise challenges a common ground affecting the whole decree. The High Court's view that the appeal must fail entirely because of the death of one respondent was not sustainable.

Conclusion: The appeal did not abate in its entirety, and the High Court was wrong in dismissing it on that ground.

Issue (ii): Whether no abatement results where one of the heirs and legal representatives is already before the Court in another capacity.

Analysis: If a deceased party has a legal representative already on record, it is sufficient that he be appropriately described as also representing the deceased estate. The proceeding does not abate merely because a formal application for bringing him on record in that capacity is not made, and the presence of other heirs not added within limitation does not compel abatement of the whole proceeding.

Conclusion: There was no abatement on this alternative ground.

Final Conclusion: The appeal succeeded, the High Court's order was set aside, and the matter was remanded for disposal according to law.

Ratio Decidendi: Where a decree rests on a ground common to all affected parties, Order 41 Rule 4 permits the appellate court to grant relief in an appeal by one of them even if another interested respondent dies and is not formally substituted, and the proceeding does not abate merely because a person already on record is also a legal representative of the deceased.

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