Raj Kishore Prasad, J.

(1) The present appeal from the preliminary decree for partition is by defendants 1 to 35(a), who were defendants first party to the suit.

(2) The appeal arises out of a suit brought by the plaintiffs respondents for declaration of their title to and confirmation of possession over some and recovery of possession of the remaining disputed lands and for partition. The suit has been decreed, and, the plaintiffs have been granted a decree for possession, and, a preliminary decree for partition has also been passed.

(3) In the suit, the competition was between two settlees. The plaintiffs claimed settlement of the disputed lands from 15 annas landlords, whereas, the defendants-appellants claimed settlement of the self same lands from the 16 annas landlords.

(4) During the pendency of the present appeal in this Court, appellant 13, Rambirit Rai, who was defendant 10 in the Court below, died. On 23-7-58, the respondents filed an application stating that appellant 13 died on 22-1-57, leaving behind three sons and three grandsons from a deceased sou, who were all members of his joint family, but, no substitution petition had been filed for substituting the legal representatives of the deceased appellant, as also of certain respondents, whose deaths were also mentioned in the Said petition. On the same day, that is, on 23-7-58, on behalf of the appellants, an application was made under Section 5 of the Limitation Act to condone the delay in filing their substitution petition in respect of the deaths of respondents 1, 9 and 19, who died long ago.

(5) On 31-7-58, the appellants made an application under Rule 3, Order 22, of the C. P. C., 1908, praying that as appellant 13 Rambirit Rai, had died on 16-6-58, leaving behind three sons and three grandsons from a deceased son, who are not on the record, they should be substituted in his place. The application was sworn by Chandradip Rai, one of the three grandsons sought to be substituted in place of their deceased grand-father, appellant 1

3. To this application, the respondents, on 4-1-58, filed a counter affidavit, by way of a rejoinder, denying the appellants allegation that appellant 13, Rambirit Rai, had died on 16-6-58, and, they re-asserted, as before, that he died on 22-1-57.

(6) The affidavit on behalf of the appellants and the counter-affidavit on behalf of the respondents came up for consideration before a Bench of this Court, which, by an order of the 6th August, 1958, directed an enquiry to be made by the Registrar of this Court regarding the date of death of appellant 13, Rambirit Rai, son of Ugrah Rai.

(7) In pursuance of the above order, an enquiry was conducted by the then learned Registrar of this Court, and, he, after a consideration of the oral and documentary evidence of both sides, found that Rambirit Rai died beyond 90 days of the date of the petition for substitution of his heirs. To this report of the Registrar of the 10th February, 1959, the appellants filed objections, on 17-3-

59. asking the report of the Registrar to be set aside.

(8) When the matter came up for hearing before this Bench, the appellants and the heirs or the deceased appellant 13, filed a joint application on 18-3-60 under Rule 10 Order 22, and, under Rule 10 of Order 1, C. P. C., re-stating that appellant 13 died on 16-6-58, and, prayed that, if it be found that appellant 1,3 died before ninety days of the filing of their application for substitution under Rule 3, Order 22 of the Code, earlier on 31-7-58, then in that case the question of applicability of Rule 10, Order 22, may be considered, and, the heirs of the deceased appellant 13 may be added as parties to the appeal under Rule 10, Order 22, read with Rule 10, Order 1, of the Code.

(9) We are, therefore, concerned in the present appeal, at present, with the above two applications made by the appellants, one under Rule 3, Order 22, on 31-7-58, and the other, made by them along with the heirs of the deceased appellant 13 on 18-3-60 under Rule 10, Order 22, and Rule 10, Order 1, of the Code. Both the above applications have been pressed by Mr. R. S. Chatterji, appearing for the appellants, and, therefore, each will be dealt with separately.

(10) Order 22, Rule 3, C. P. C. In support of the earlier application of the appellants made under Rule 3, Order 22, on 31-7-58, the main objection of Mr. Chatterji to the report of the learned Registrar is that his decision has been largely influenced by an inadmissible evidence, namely, Ex. C, and, therefore, on this ground alone it was argued, the report of the learned Registrar should be set aside, and, the matter sent back for a fresh enquiry after excluding Ex. C.

(11) (Holding that the Registrar did not base his findings on Ex. C, his Lordship proceeded): The only ground of objection taken to the report of the Registrar having been rejected, I see no legal reason why his report should not be confirmed.

(12) I therefore, hold, in agreement with the learned Registrar, that the appellants have failed to establish that deceased appellant 13, Rambirit Rai, died on 16-6-58, as alleged by them, and, that the respondents Case that he died beyond 90 days of the date of the petition of substitution made on 31-7-58, is correct.

(13) The result of the above finding, therefore, is that no application under Rule 3, of Order 22, to make the sons and the grandsons of the deceased-appellant 13 parties to the appeal, having been made within ninety days, the appeal had abated as against the heirs of the deceased appellant 13, Rambirit Rai. No application having been made within sixty days thereafter to set aside the abatement under Rule 9 of the same Order, the abatement of the appeal as against the heirs of deceased appellant 13, therefore, stands. The application of the appellants made under Rule 3, Order 22, is, there fore, rejected.

(14) Order 22, Rule 10, C. P. C. It was conceded by Mr. Chatterji that if the joint application, made by the appellants and the heirs of the deceased appellant 13, on 18-3-60, under Rule 10 of Order 22, is held to be not maintainable, then the question as to what would be the effect of the appeal having abated against the heirs of deceased appellant 13 on the whole appeal will have to be considered hereafter.

(15) We are, therefore, at present concerned only with the question as to whether Rule 10 of Order 22, applies to the present case, and, whether the heirs of the deceased appellant 13 should be made parries to the appeal as prayed for by them and the remaining appellants.

(16) Mr. Chatterji very strongly urged that there is no question of any abatement of the present appeal from the preliminary decree, because when a preliminary decree is made, the rights between the parties have been determined, and the question of the right to sue surviving or not surviving does not arise, and therefore, in such a case the provisions of rules 3 and 4 of Order 22, had no application; on the contrary, it was Rule 10 of the said Order which applied, and, therefore, no application under Rule 3, Order 22, in the instant case, was necessary, and, as such, the fact that such an application was made and rejected does not stand in the way of this Court in giving relief to the appellants under Rule 10, Order 22, and hence, the appellants application under Rule 10, Order 22, should be allowed, and, the heirs of the deceased appellant 13 added as parties to the appeal, in place of the deceased appellant 13, as in such a case no question of limitation arises for making such an application. In support of his contention, Mr. Chatterji placed strong reliance on a Bench decision of this Court in Lal Behari Gorain v. Ishwar Gorain, AIR 1956 Pat 376 [LQ/PatHC/1954/10] : 1956 BLJR 22, and also on a decision of the Privy Council in Mahomedally Tyebally v. Safiabia, 67 Ind App 406: (AIR 1940 PC 215 [LQ/PC/1940/45] ).

(17) On the other hand, in reply, it was urged by Mr. Bhabanand Mukherji, appearing for the plaintiffs-respondents, that here Rule 10, Order 22, had no application, and it was Rule 3 of Order 22, which applied, and. as such, the application for substitution of the legal representatives of the deceased appellant 13, in his place admittedly having been not made within the period of limitation, it has rightly been held that the appeal had abated as against the heirs of the deceased appellant 13, because, although the appellants made an application under Rule 3, Order 22, they did not apply under Rule 9 of Order 22, for setting aside the abatement. He further argued that the Bench decision of this Court in Lal Behari Gorain, AIR 1956 Put 376, relied upon by Mr. Chatterji, was wrong, and, that in the said case, the earlier Bench decisions of this Court in, for example, Daroga Singh v. Raghu Nandan Singh, 6 Pat LT 461 : (AIR 1925 Pat 590 [LQ/PatHC/1925/133] ); Jainarayan Ojha v. Hira Ojha 14 Pat LT 702: (AIR 1933 Pat 464 [LQ/PatHC/1933/57] ) and, Chinaman Mahto v. Bhatu Mahto, 16 Pat LT 308 : (AIR 1935 Pat 241), which have taken a contrary view, had not been noticed and taken into consideration. He, therefore, argued that the above earlier Bench decisions, relied upon by him should prevail over the subsequent only Bench decision, relied upon by Mr. Chatterji, and, the present application of the appellants made under Rule 10 of Order 22, should be rejected in limine on the mere ground that it was not maintainable.

(18) On the above arguments at the Bar. therefore, the sole question, which merges for determination here, is, whether Rule 3, or Rule 10 of Order 22, would apply to a case, where, as here, after the preliminary decree, but, before the final decree, and, during the pendency of an appeal from the preliminary decree, one of the appellants dies

(19) For the decision of the above question, pressed on behalf of the appellants, it is necessary to examine the several decisions On the point, particularly the authorities of this Court relied upon by the learned counsel for the parties in support of their rival contentions.

(20) AIR 1956 Pat 376 [LQ/PatHC/1954/10] : 1956 B L J R 22 --Lal Behari Gorains case, AIR 1956 Pat 376 [LQ/PatHC/1954/10] , prima facie, supports the appellants. In that case preliminary decree for partition was passed, and an appeal against the said preliminary decree was filed in this Court. During the pendency of the said appeal from the preliminary dercee for partition, appellant 4 of that appeal died on the 15th August. 1953, and; an application for substitution of his legal representatives was made on the 7th December, 1953, beyond the period of limitation prescribed for such an application. Upon the said application, it was argued on behalf of the respondents that the application for substitution, as required by Rule 3, Order 22, not having been made within the period of limitation, the appeal, as far as as deceased appellant 4 was concerned, had abated, and, therefore, the whole appeal had abated. On the other hand, on behalf of the appellants, it was argued that Rule 10 and not Rule 3 of Order 22 applied, and, as there was no question of limitation for filing an application under Rule 10 of Order 22, the legal representative of the deceased appellant should be substituted under Rule 10 of Order 2

2. Imam, C. J., and, Sahai, J., in a joint order, relying on Shanti Devi v. Khodai Prasad Singh, AIR 1942 Pat 340 [LQ/PatHC/1942/17] : 23 Pat LT 615, and Raghunandan Sahu v. Badri Pandey, AIR 1945 Pat 380 [LQ/PatHC/1945/29] : ILR 24 Pat 314, held that in view of these two Patna cases, there can be no question that Rule 10, Order 22, applies, and, not Rules 3 and 4 of Order 2

2. Their Lordships further observed that in Rules 3 and 4 of Order 22, the question of substitution arises on the death of a plaintiff or a defendant when the right to sue survives, but where a preliminary decree has been made the rights between the parties have been determined and the question of the right to sue surviving does not arise. In that view, the application of the appellants made under Rule 10, O, 22, was allowed, and, the legal representatives of the deceased appellant 4 were substituted in his place.

(21) As the above case lends prima facie assistance to the argument of the appellants, and, as the facts of that case and of the present case are the same, it is necessary to examine the just mentioned two cases which were the basis of the decision and relied upon in Lal Behari Gorains case, AIR 1956 Pat 376 [LQ/PatHC/1954/10] (supra).

(22) AIR 1942 Pat 340 [LQ/PatHC/1942/17] : 23 Pat LT 615. -- The first case of Shanti Devi, AIR 1942 Pat 340 [LQ/PatHC/1942/17] , was not a case of an appeal pending in the first appellate Court from a preliminary decree. In that case what happened was this: A preliminary decree in a mortgage suit was passed, and, it became final, as no appeal against it was taken to the superior Court. The plaintiff, thereafter, applied for preparation of a final decree and during the pendency of that proceeding in the trial Court made an application to substitute the legal representative of the deceased defendant. The Court below allowed the application overruling the objection that the suit had abated. This Court was moved thereafter and then when the matter came to this Court, it was held by Rowland and Chatterji, JJ., that the Rule seems to be that, on the one hand, no final decree can be passed without representative of the deceased party being brought on the record; but, on the other hand, that Rule 10, and not Rules 3 and 4, of Order 22 are to be regarded as governing the procedure for making the necessary substitution. In those circumstances relying on the Privy Council decision in Lachmi Nafain v. Balmakund, 51 Ind App 321: AIR 1924 PC 198 [LQ/PC/1924/52] , and the Full Bench decision of the Madras High Court in Perumal Pillai v. Perumal Chetty, AIR 1928 Mad 914 [LQ/MadHC/1928/54] : ILR 51 Mad 701 [LQ/MadHC/1928/54] , and a Bench decision or (his Court in Mt Bhatia v. Abdus Shakur, AIR 1931 Pat 57 [LQ/PatHC/1930/112] : 11 Pat LT 7

96. their Lordships held that Rule 10, Order 22, applied to the case, and therefore, the Court below had rightly overruled the objection that the suit had abated,

(23) It will thus be noticed that the above case was not a case of an appeal from the preliminary decree, rather it was a case in which the preliminary decree had become final, and, only the preparation of a final decree in pursuance of the preliminary decree was pending in the first Court and during the pendency of that proceeding one of the defendants had died. That case, therefore, has no application here where the preliminary decree has not become final, as it is still pending in appeal before this Court.

(24) AIR 1945 Pat 380 [LQ/PatHC/1945/29] : ILR 24 Pat 314. --The second case of Raghunandan Sahu, AIR 1945 Pat 380 [LQ/PatHC/1945/29] , has also no application here. In that case also, the preliminary decree for partition had become final, as no appeal against it was carried to the appellate Court. The final decree had also become final, but, subsequently, one of the defendants to that suit appeared and filed an objection that the final decree should be set aside, as he had not been given sufficient opportunity to file objections to the Commissioners report. This objection was allowed, and, the final degree was vacated as the grievance was found to be correct. During the hearing of the above objection of the defendant for vacating the final decree, it transpired that one of the defendants had died after the passing of the preliminary decree but before the passing of the final decree, and, no step had been taken to bring his heirs on record. The Court, therefore, while vacating the final decree directed that the heirs of the deceased defendant should be brought on the record by a particular date. No steps, however, were taken by the date fixed for substituting the heirs of the deceased defendant and, therefore, the Court, after the final decree bad been vacated, ordered that "the suit would abate as regards the deceased defendant 5", but the suit was adjourned for filing objection if any, against the allotment report of the Commissioner. Attempts were made to get the abatement order vacated, but they proved unsuccessful. The matter was then brought to this Court on a revisional application, and, here it was contended that after the preliminary decree had been passed, the Court below had no jurisdiction to hold that the suit had abated against the heirs of the deceased defendant and, therefore, the whole proceedings after the preliminary decree should be set aside as being null and void, and, the plaintiff should be permitted to take steps to have a proper final decree passed in the presence of all the parties. Manohar Lall and Das, JJ., by separate, but concurring judgments, set aside the order of the Court below holding that the suit had abated as against the heirs of the deceased defendant and directed that the plaintiffs should be allowed to continue the proceedings for making the preliminary decree final after bringing on record the heirs of the deceased defendant.

(25) It will thus be seen that the two cases relied upon in Lal Bihari Gorains case, AIR 1959 Pat 376 [LQ/PatHC/1959/19] , had no application to the facts of that case. It appears, as rightly urged by the respondents, that the earlier cases of this Court which have been mentioned before, and, which will be presently noticed hereinafter, were not brought to the notice of their Lordships, as there is no mention of the said cases therein.

(26) I will now proceed to examine the earlier decisions of this Court, relied upon by the respondents, to see if in these cases a contrary view has been taken, as contended by them.

(27) 6 Pat LT 451: (AIR 1925 Pat 590 [LQ/PatHC/1925/133] ). The earliest case of this Court brought to our notice, is the case of 6 Pat LT 451: (AIR 1925 Pat 590 [LQ/PatHC/1925/133] ), decided by Dawson-Miller, C. J., and Macpherson, J. In that case, an appeal from the preliminary decree in a mortgage suit was brought to this Court by some of the defendants. During the pendency of the said appeal in this Court, one of the plaintiffs-respondents died leaving behind two sons, who were interested in the decree obtained by the father and whom the defendants-appellants failed to bring on record. In that case two deaths had taken place, first that of the father, and then that of the son. In dealing with the death of the father, Sir Dawson Miller, C. J., definitely stated that nothing turned upon that death, because the sons being the survivors of the interest of the father were already on the record; but the appeal was held to have abated in consequence of the death of the son, later on, whose two sons were not brought on the record within the time allowed by law. The learned Chief Justice held that as it was a mortgage suit and the plaintiffs were all jointly interested in the mortgage decree, the whole appeal abated if all the parties are not brought on the record. In that case, however, no application was made for setting aside the abatement and for bringing on the record the sons of the deceased plaintiff-respondent. The observation made by the learned Chief Justice further indicates that in the case of a suit against all the members of the joint family, the fact that no application for substitution is made on the death of one of, them, the remaining being his only Survivors, would not be fatal to the suit.

(28) It may be noticed that the above case of Daroga Singh, AIR 1925 Pat 590 [LQ/PatHC/1925/133] . as well as the case of Shanti Devi, AIR 1942 Pat 340 [LQ/PatHC/1942/17] , relied upon in Lal Behari Gorains case, AIR 1956 Pat 376 [LQ/PatHC/1954/10] (supra), both, no doubt, arose out of a mortgage suit but the difference in the two cases is apparent. In Daroga Singhs case, 6 Pat LT 451: (AIR 1925. Pat 590), the appeal against the preliminary decree was pending before the appellate Court, whereas, in Shanti Devi, AIR 1942 Pat 340 [LQ/PatHC/1942/17] , the preliminary decree had become final, and, what was pending was only the preparation of the final decree in pursuance of the preliminary decree.

(29) 14 Pat LT 702: (AIR 1933 Pat 464 [LQ/PatHC/1933/57] ). In Jainarain Ojhas case, 14 Pat LT 702: (AIR 1933 Pat 464 [LQ/PatHC/1933/57] ), a suit for declaration of title and posses- sion was decreed subject to certain rights of the contesting defendants amongst whom were the two widows of one Bulaki Ojha, named, Mrs. Parkalo and Pramjanto. An appeal against the decree was carried to the Court of the District Judge by the plaitntiffs. During the pendency of the appeal before the District Judge, Parkalo, one of the two widows who were respondents to the appeal, died. The legal representative of Parkalo admittedly was her co-widow, Pramjanto, who was already on the record. No application, however, was made to substitute Pramjanto as legal representative ot Parkalo. The question, which, therefore, arose, was, if it was necessary to do so and did the failure to do so involve an abatement of the appeal as a whole. The learned District Judge, held that the whole appeal had abated, because Pramjanto, the legal representative of the deceased co-widow Parkalo was not on the record as the legal representative of her deceased co-widow Parkalo, and she had not been brought on the record as her legal representative. An application for setting aside the above order of abatement was made, but it was refused by him. Both an appeal and a revision were then brought, against the aforesaid order of the District Judge, refusing to set aside the abatement and holding that the whole appeal had abated, to this Court, Wort and Khwaja Mohammad Noor, JJ., by separate, but Concurring judgments held that the case was governed by the provisions of Rule 2, Order 22 and that where two widows are sued as representing the estate of their deceased husband, then on the death of one of them it was represented by the surviving widow, and in such a case no application is necessary. Noor, J., also observed that: Co-widows hold the estate of their deceased husband jointly and are governed by the rule of survivorship. Both of them jointly represent the estate of their deceased husband, and if one of them dies, the other continues to represent the estate alone. No substitution is necessary. It was, therefore, held that the order of the Court below holding that the appeal had abated was wrong.

(30) The principle which was laid down in the above case was that if on the death of a party the right to sue survives against the other surviving party, who is already on record, then no application for substitution of the heir of the deceased party who is already on the record is necessary, but if the right to sue does not survive, then the heirs of the deceased party must be brought on the record by an application under Rule 3 or Rule 4, as the case may be, of Order 22.

(31) 16 Pat LT 308: (AIR 1935 Pat 241). In Churaman Mahtos case, 16 Pat LT 308: (AIR 1935 Pat 241), an appeal from the judgment of the Court below dismissing the plaintiffs suit for partition was pending in this Court. During the pendency of the appeal, defendant 21, who was respondent 21 to the appeal, died, and, no substitution of his heirs having been made within the time allowed by the law, the appeal stood abated against his heir. An application for setting aside the abatement was made, but it was rejected. The question then arose as to whether the appeal could proceed against the remaining respondents, after the appeal had abated as against the heirs of the deceased respondent. It was held by Khwaja Mohammad Noor, J., with whom Dhavle, J., agreed that: It being a partition suit, no decree can be passed for partition in the absence of a single co-sharer"

(32) Similar is the position in the present case with this difference only that in this case a preliminary decree for partition has been passed, and, an appeal against it is pending in this Court, and, in that case the suit for partition had been dismissed, and, an appeal against that judgment was pending in this Court. Nevertheless, the principle still remains that in a suit for partition, in the absence of a single co-sharer of the lands under partition, no decree for partition can be passed. Dhavle, J., who agreed with Kwaja Mohammad Noor. J., in a separate but concurring judgment, referred to Daroga Singhs case, 6 Pat L T 451: (AIR 1925 Pat 590 [LQ/PatHC/1925/133] ), which was referred to in Jainarain Ojhas case, 14 Pat LT 702: (AIR 1933 Pat 464 [LQ/PatHC/1933/57] ), and held that the fact that Daroga Singhs case, 6 Pat LT 451: (AIR 1925 Pat 590 [LQ/PatHC/1925/133] ), was a mortgage suit made no difference. In this connection, his Lordship observed that the case or Daroga Singh, AIR 1925 Pat 590 [LQ/PatHC/1925/133] (supra), "is an instance of the operation of the rule in both ways; that it was a mortgage suit makes no difference, for the same principle obviously applies to partition suit". His Lordship further said that "where the death of one of the respondents does not make the representation of the interests involved incomplete, there is no abatement and the appeal earn proceed; but where such death makes the representation incomplete, an abatement of the appeal as a whole takes place". In the case of Churaman Mahto, AIR 1935 Pat 241, just mentioned, the suit for partition was amongst the members of a joint Hindu family, and, a brother of the deceased respondent was on the record, still it was held that it was impossible to hold that the brother completely represented that family in view of the admitted fact that the deceased respondent had left a son. who was not on the record. In my opinion, the principles laid down in the above case also fully govern the present case.

(33) Churaman Mahtos case, 16 Pat LT 308: (AIR 1935 Pat 241), was followed by the Nagpur High Court in Ramnath Kisanlal v. Ramgopal Bhaulal, AIR 1951 Nag 434. In that case, the plaintiffs suit for partition and possession was dismissed. An appeal against the said judgment and decree was preferred to the High Court. During the pendency of the appeal in the High Court defendant 1 died leaving behind a widow who was not made a party. It was held that the whole appeal had abated. Their Lordships, Hidayatullah and R. Kaushalendra Rao, JJ., observed that it is an accepted proposition that no decree for partition can be made in the absence of any co-sharers. In a suit for partition of property alleged to be joint, every member of the joint family who is entitled to a share, is a necessary party. Different considerations may well arise when the contest is not between the members of the joint family represented by its manager and a stranger. In the latter case the manager or the managing members of the joint family may adequately represent all the members of the family including a widow entitled to a share under the Hindu Womens Rights to Property Act.

(34) If the above three earlier decisions of this Court had been brought to the notice of their Lordships in Lal Behari Gorains case, AIR 1956 Pat 376 [LQ/PatHC/1954/10] (supra), strongly relied upon by the appellants I feel that the decision of their Lordships might have been otherwise.

(35) It is well established, that if there are two conflicting decisions of Division Benches of a High Court, the opinion expressed by the first Division Bench must prevail; Sashi Bhusan Rai v. Bhimeshwar Rai, (S) AIR 1955 Pat 124 [LQ/PatHC/1954/111] . I would, therefore, in the instant case, follow the earlier Bench decisions of this Court in 6 Pat LT 451: (AIR 1925 Pat 590 [LQ/PatHC/1925/133] ), 14 Pat LT 702: (AIR 1933 Pat 464 [LQ/PatHC/1933/57] ), and 16 Pat LT 308: (AIR 1935 Pat 241), in preference to the subsequent Bench decision of this Court in AIR 1956 Pat 376 [LQ/PatHC/1954/10] .

(36) After having examined the cases cited at the Bar, I would now proceed to answer the question posed by me earlier and raised in the appeal. Before, however, I do so I like to notice some other earlier Bench decisions of this Court.

(37) Basist Narayan Singh v. Modnath Da, 9 Pat LT 153: AIR 1928 Pat 250 [LQ/PatHC/1927/230] : ILR 7 Pat 285. In the above case, an appeal, arising out of a suit for specific performance of contract, was pending in this Court. During the pendency of the appeal, two of the defendants-respondents died, but no substitution petition was filed within time. When the appeal came up for hearing, it was contended, on behalf of the surviving brother of the deceased respondents, that the whole appeal had abated, whereas it was contended, on behalf of the other side, that the surviving brother being the Karta of the joint family of which the defendants were the members it was not necessary to substitute the legal representatives of the deceased. It was held, by Das and Kulwant Sahay, JJ., that although the deceased respondents and the surviving brother were members of a joint family, it was necessary to substitute the legal representatives of the deceased respondents and the fact that the surviving brother was a party was immaterial, and therefore, the whole appeal had abated.

(38) AIR 1931 Pat 57 [LQ/PatHC/1930/112] : 11 Pat LT 7

96. In the above case Rose and Chatterjee, JJ., held than Rules 3 and 4 of Order 22 do not apply to cases of death of parties after the passing of the preliminary decree. In that case, the preliminary decree became final on appeal in 1924. The sole defendant, thereafter, died on 24-6-1925. Then an application for ascertainment of mesne profits was made against the heirs of the sole defendant who had died earlier after the decision of the appeal against the preliminary decree. The said heirs objected that at that stage the application for mesne profits could not be made against them, and, that it was barred by limitation. The plaintiffs then applied to set aside the abatement, if any. The Court held that there was no abatement. The Court, thereafter, passed a de- cree for mesne profits and from that final decree an appeal was brought to this Court. On appeal the question arose as to the effect of the death after the preliminary decree had become final, and it was held following the Privy Council decision in 51 Ind App 321 : (AIR 1924 PC 198 [LQ/PC/1924/52] ), that, in such circumstances, the suit could not be dismissed, and, therefore, there was no question of abatement. It was further observed that the words used in Rules 3 and 4 of O: 22, are right to sue, and the right of action is determined by the decree, and, as such these Rules are not strictly applicable.

(39) Lilo Sonar v. Jhagni Sahu, AIR 1925 Pat 123: ILR 3 Pat 853: 6 Pat LT 31

3. In the above case, respondent 1, Jhagru Sahu died during the pendency of the appeal in this Court leaving behind several legal representatives, one of whom only was already On the record, as respondent

2. No application for substitution of the other legal representatives was made within the statutory period and, therefore, it was contended that the appeal had abated. In such circumstances, it was held by Jwala Prasad and Kulwant Sahay, JJ., that the appeal had abated, because the fact that one of the legal representatives of the deceased is already on the record does not relieve the appellant or the other heirs of the deceased from making an application for substitution as legal representatives of the deceased in terms of Rule 4 of Order 2

2. It is obvious, therefore, that in that case as all the legal representatives were not on the record, the right of appeal did not survive against the surviving respondents alone, but also against the persons other than those who were already on the record. In that view, Rule 4 and not Rule 2, Order 22, C. P. C. applied.

(40) Sankru Mahto v. Bhoju Mahto, AIR 1930 Pat 548: ILR 15 Pat 326. In the above case, it was laid down by Macpherson and Mohammad Noor, JJ., that the test whether a right to sue survives in the surviving plaintiffs or against the surviving defendants is whether the surviving plaintiffs can alone sue or the surviving defendants could alone be sued in the absence of the deceased plaintiff or defendant respectively,

(41) Bhudeb Chandra Roy v. Bhikshakar Pattanaik, AIR 1942 Pat 120 [LQ/PatHC/1941/146] . In that case, the just mentioned case of Sankru Mahto, AIR 1936 Pat 548 [LQ/PatHC/1935/185] , was relied upon. That was an appeal arising out of a suit for recovery of rent and cess. During the pendency of the appeal, one of the appellants died leaving a will by which appellant No. 2 was appointed as the sole executor. In considering the argument as to whether an application for substitution was necessary under Rule 35. Order 22, when appellant No. 2, the sole executor, was on the record, in his individual capacity and not as a legal representative of the deceased appellant, Chatterji, J., with whom Harries, C. J., agreed, observed, that upon the plain language of Rule 3, Order 22, it obviously applies to a case where the right to sue does not survive to the surviving plaintiff or plaintiffs alone; in other words, where the legal representative to whom the right to sue survives is not on the record. Their Lordships laid down that in order to determine whether Rule 2 or Rule 3 applies, it is necessary to see whether or not the right to sue survives to the surviving plaintiff Or plaintiffs alone. Their Lordships, therefore, held that there was nothing in Rule 2 to show that it does not apply where the legal representative is on the record not as such but in his individual capacity. It was, therefore, held that when the representatives of a deceased party are already on the record and the right to sue survives to the remaining plaintiff or plaintiffs, the case comes within Rule 2, and not within Rule

3. and no petition for substitution is necessary.

(42) Mt. Hifsa Khatoon v. Mohammad Salimar Rahman, AIR 1959 Pat 254 [LQ/PatHC/1958/187] : 1959 BLJR 7 (FB). This case is a Full Bench decision of this Court ia which most of the cases, referred to before, were referred to and considered. The above case was brought to this Court on a revisional application. In that case, the case of Mt. Waleyatunnissa Begum v. Mt. Chalakhi, AIR 1931 Pat 164 [LQ/PatHC/1930/158] : ILR 10 Pat 341, was overruled, and the case of AIR 1936 Pat 548 [LQ/PatHC/1935/185] , above mentioned, was approved- On a consideration of the authorities it was held that where all the heirs or legal representatives of the deceased are already on the record in any capacity, it is not necessary to make an application for their substitution in the place of the deceased and such a case is governed by Rule 2 of Order 22, and not by Rules 3 and 4 of that Order.

(43) On a consideration of the above decided cases of this Court, it is plain that in all cases of appeals where during the pendency of an appeal an appellant dies, the cardinal point for consideration is whether the deceased appellants right to appeal did or did not survive to the surviving appellant or appellants alone.

(44) The crucial point for determination, therefore, is whether the right to sue survives, after a preliminary decree for partition, if it is pending in appeal, and, it has not become final

(45) In order to decide, therefore, whether, to the instant case, Rule 10, Order 22 applies, as urged on behalf of the appellants, or Rule 3 of Order 22 applies, as pressed by the respondents, it is necessary first to read the relevant Rules of Order 22, of the C. P. C. The material Rules of Order 22, for our purpose are Rules 3(1), 10(1) and 11, which are to the following effect:

"3(1). Where one of two or more plaintiffs dies and the right to fue does not survive to the surviving plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on in application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. x x x x x 10(1). In other cases of an assignment, crea tion or devolution of any interest during the pen dency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved

. (2) x x xx x 1

1. In the application of this order to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal."

(46) The crux of the whole matter is, how the words, "the right to sue" used in Rule 3(1) of Order 22, with which alone we are concerned here, are to be interpreted. In order to know the true meaning of these words and their proper construction, it is necessary to know first the scheme of Order 22 of the Code.

(47) Order 22 of the Code deals with the effect of "Death, Marriage and Insolvency of parties" in pending suits. It distinguishes between cases in which "the right to sue" survives and those in which it does not. In the former class of cases, that is, where "the right to sue survives, the suit is allowed to be continued by or against the legal representatives of the deceased provided they are brought on the record within the statutory period of limitation. In the latter class of cases, that is, where "the right to sue does not survive, no question of continuance of the suit by any other person arises. It will thus appear that Order 22 is really confined to questions of the continuance of the suit by virtue of the devolution of the deceaseds right to sue on other persons during the pendency of the suit; but there will be cases in which the suit can be continued by other persons who have independent right to sue on the same cause of action. Order 22, therefore, contemplates cases of devolution of interest from some original party to the suit --whether plaintiff or defendant --upon some one else. The more ordinary cases are of death, marriage and insolvency, and then come the general provisions of Rule 10 for all other cases, but they are all cases of devolution.

(48) Rule 1 lays down that if "the right to sue" survives, there shall be no abatement of a suit by reason of the death of a plaintiff or a defendant. Rules 2, 3 and 4 deal with cases of devolution of interest on the death of a plaintiff or a defendant. Rule 7 deals with the case of creation of an interest in a husband on marriage. Rule 8 deals with the case of assignment on the insolvency of a plaintiff. Rule 10 provides for cases of assignment, creation or devolution of any interest other than those mentioned above. Rule 10 is not confined to devolution of interest by death.

(49) We are, here, concerned only with Rules 3 and 10, and, therefore, I shall confine myself particularly to these rules.

(50) Rule 3 speaks of two classes of cases (i) where one or two or more plaintiffs dies and "the right to sue" does not survive to the surviving plaintiff or plaintiffs alone, and, (ii) where a sole plaintiff or sole surviving plaintiff dies and "the right to sue" survives. In either case the legal representative of the deceased plaintiff ought to be made a party to the suit, for which purpose an application should be made to the Court, and, it must be made within 90 days from the date of the death of the deceased plaintiff, and, thereafter, the Court shall cause the legal representative of the deceased plaintiff to be made a party and shall then proceed with the suit. Sub-rule (2) of Rule 3 further provides that where no such application is made the suit shall abate so far as the deceased plaintiff is concerned.

(51) It may be. mentioned that where the right to sue survives to the surviving plaintiff or plaintiffs alone, then Rule 2 applies, and, in such a case no application for substitution of the surviving plaintiff or plaintiffs in the place of the deceased plaintiff is necessary.

(52) On the plain language of Rule 3, therefore, it is manifest that the true test to find out if Rule 3 applies is whether "the right to sue" survives or does not survive.

(53) By Rule 1

1. p. 22, the words plaintiff defendant and suit include an appellant, respondent, and, an appeal respectively.

(54) Reading Rules 3 and 10, with Rule 11 ot Order 22, therefore, the proper construction of Rules 3 and 10 would be to hold that the word suit occurring in Rules 3 and 10, should, so far as may be, include appeal. That the provisions of Order 22, apply to appeals also will further appear from section 107(2) also.

(55) The provisions of Rule 3, therefore, apply not only to the case of a deceased plaintiff, hut also to the case, of a deceased appellant. Where, therefore, one of two or more appellants dies and the right to appeal does not survive to the surviving appellant or appellants alone, as is the case here, or, where a sole appellant or sole surviving appellant dies, and, the right to appeal survives to his legal representative, who is not already on the record, the legal representative of the deceased appellant ought to be brought on the record by an application made under Rule 3, of Order 22, within the time allowed by law, and, if this is not done, the appeal shall abate so far as the deceased appellant is concerned.

(56) The word "interest" in Rule 10 means interest in the property, the subject-matter of the suit. The interest, referred to in this Rule, is the interest of the person who was a party to the suit. The words any interest are used in Rule 10 in a much wider sense, and, they include any transferable "right to sue" spoken of in the earlier Rules of the Order which provide for its devolution in case of death, and not merely an interest in tangible property.

(57) The words during the pendency of a suit, used in Rule 10, mean before a final decree or order hag been passed or made in the suit. Hence, the provisions of Rule 10 apply if the assignment, creation or devolution of interest takes before a final decree or order is passed or made in the suit. There is no power to make an order under Rule 10 after the final decree has been passed.

(58) The provisions of Order 22, therefore, do not apply where a party dies after the final decree is passed.

(59) In the case of an appeal also, therefore, the provisions of Rule 10 apply if the assignment, creation or devolution o interest takes place before a final decree or order is passed or made in the appeal. Rule 10 does not apply if the assignment is made after the passing of the decree and before the filing of the appeal. Rule 10 only governs an application to continue a suit. An application by a transferee of the interest of a party made after the termination of a suit is not within this Rule. An application under Rule 10 is not entitled to leave to be joined as a party as a matter of right. Although leave should not be unreasonably refused the Court has a discretion in the matter, and, it may refuse leave on the ground of laches or delay.

(60) Where, therefore, a decree has been passed for the plaintiff in a suit in which the right to sue would not have survived had the plaintiff died before decree, and either party dies pending an appeal, the question whether the appeal abates depends upon whether the right claimed in the appeal, arises out of the decree, or, is to enforce the original right to sue. Thus, for example, if damages have been awarded against a defendant, and. the defendant appeals and dies pending the appeal, the appeal does not abate, for his legal representative may carry on the appeal to get rid of the decree which would otherwise have to be paid out of the state of the deceased. Again, if damages have been awarded against a defendant and the plaintiff dies pending the defendants appeal, the appeal does not abate for the plaintiffs legal representative may defend the appeal to claim the benefit of the decree. But, if after damages are awarded against a defendant, the plaintiff appeals for enhanced damages and dies pending the appeal, the appeal abates for the plaintiffs claim in the appeal is to enforce the original right to sue. It follows that if the plaintiff has appealed from the decree, the appeal will abate.

(61) The right to sue in Order 22, therefore, means the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death. Such a right to sue is a vested right. On the above scheme of Order 22 o the Code, therefore, it is manifest that in order to find out whether Rule 3, or, Rule 10 of Order 22 would apply here, the real test to find out is, whether the right to sue survived, or, it did not survive. In other words, more appropriately, if the right to appeal, arising out of the preliminary decree for partition, survived, or, it did not survive to the surviving appellants.

(62) The only ground on which it is urged that the right to sue did not survive is that with the passing of the preliminary decree the right to sue died, and, dierefore, the mere fact that an appeal was pending against the said preliminary decree, it will not keep alive the right to sue which vanished with the passing of the preliminary decree notwithstanding that it is not yet final. On the other side, it was urged that the right to sue because of the pendency of the appeal is kept alive as long as the appeal is not finally disposed of and the preliminary decree does not become final.

(63) In order to resolve this controversy, it is essential to appreciate the difference between a preliminary decree for partition, which has become final, and, a preliminary decree for partition, against which an appeal is pending before the appellate Court. It is also necessary to know the functions of a preliminary decree and a final decree in a partition suit, and, the scope of an appeal, and, the legal consequences, which flow on an appeal being pending, and, which affect the rights of the parties to the appeal.

(64) By a preliminary decree rights of the parties are crystallised, as it has conclusively determined the rights of the parties in regard to the matters involved in the suit. The Function of the final decree, in a suit for partition, as such, when a preliminary decree has been passed and, it has become final, either because it has not been appealed against, or, because it has been affirmed on appeal, is merely to re-state and apply with precision what the preliminary decree has ordained. Both the decrees are in the same suit. The final decree is, in its nature, dependent and subordinate, because it is a decree which has been passed as a result of proceedings directed and controlled by the preliminary decree and based thereon. The appellate Court, if it has power Over the preliminary decree at all, it has power to reverse it or vary it, and, as such, it has power to affect the final decree, per Sir George Rankin, C. J. in Taleb All v. Abdul Aziz, AIR 1929 Cal 689 [LQ/CalHC/1929/301] (FB).

(65) It is, therefore, clear that the rights of the parties involved in the suit are determined by the preliminary decree, and, if it has become final, thereafter the question of the right to sue surviving or not surviving does not arise. When, therefore, the preliminary decree has become final and it is in course of being made final on an application to make it final, it can hardly be said that the right to sue still exists, and, it would be inappropriate in such cases to refer to the right to sue as either surviving or not surviving. In such a case, therefore, if a death occurs after the preliminary decree, which has become final, and, before the passing of the final decree, how can then the suit abate, when the suit has already terminated in a preliminary decree. That decree cannot be altered or rendered nugatory without its reversal. Therefore, when the preliminary decree has become final, the right to sue disappears; but where a preliminary decree has not become final, in that, an appeal against it is pending in the appellate Court, it cannot be said that the right to sue has disappeared, and as such, the question of the right to sue surviving or not surviving does arise in a case of an appeal from a preliminary decree, and to such a case where an appeal against the preliminary decree is pending, Rule 10 of Order 22 would not apply at all, obviously because to such a case Rule 3 or Rule 4, as the case may be, would apply.

(66) It is well settled by the decision of the Privy Council in 51 Ind App 321: (AIR 1924 PC 198 [LQ/PC/1924/52] ), that after a preliminary decree has been made in a suit for partition, which has become final, the suit cannot be dismissed unless the decree is reversed on appeal, because the parties have on the making of the preliminary decree acquired rights or incurred liabilities which are fixed, unless and until decree is varied or set aside. After a preliminary decree in a partition suit, any party can apply to have it enforced.

(67) Following the above Privy Council decision it was held by a Full Bench of the Madras High Court in AIR 1928 Mad 914 [LQ/MadHC/1928/54] : ILR 51 Mad 701 [LQ/MadHC/1928/54] , that Rules 3 and 4 of Order 22 of the Code do not apply to the cases of death after the passing of the final decree. In that case, a preliminary decree in a mortgage suit was passed, and, thereafter, the plaintiff, who obtained the decree, died before the final iecree had been passed. No application having been made, or, acceded to, within three months of the plaintiffs death, to add his legal representatives on the record, it was contended that the suit must be deemed by the provisions of Rule 3 of Order 22, to have abated. Coutts-Trotter C. J., who delivered the judgment of the Full Bench, observed that the most illuminating principle which should guide appeared to be contained in the case of Chapman v. Day, (1883) 48 LT 907, tried by Pollock, B. and Justice Lopes, J., where, in the judgment of Lopes, J., the following passage occurred:

"It is said that the defendant having died, the maxim achio personalia moritur cum persona applies, I think it does not apply in such a case as this. I think action means right of action and if that is the true way of looking at it the right of action here had been determined before the death of the defendant."

(68) In the above Madras case also the preliminary decree had become final as never any appeal was preferred against it, and, as a matter of fact a final decree had also been passed.

(69) A decree is final if it finally disposes of the rights of the parties. But when an appeal is pending from that decree, it is not final for the rights of the parties were still under appeal. The finality must be finality in relation to the suit. If after the decree the suit is still a live suit in which the rights of the parties have still to be determined, a final order comprises of the cardinal issue in the suit. The term "suit" includes the appellate stage thereof. The suit, therefore, will be deemed to be pending until the appeal is finally disposed of and a final order passed upon the appeal.

(70) The word appeal has not been defined in the Code, and, as such, it has to be construed in its natural and ordinary meaning. It, therefore, means "the removal of a cause from an inferior to a superior Court for the purposes of testing the soundness of the decision of the inferior Court". It is thus a remedy provided by law for getting the decree of the lower Court cancelled, and is in fact a complaint made to the higher Court that the decree of the lower Court is unsound and wrong. An appeal, therefore, is not a fresh suit, but is only a continuation of the original proceedings and a stage in the suit itself. The decree passed by the appellate Court is a decree in the suit and appellate judgment stands in the place of the original judgment for all legal purposes. The subject matter of the appeal is the decree, that is, the conclusive determination of the right of the parties with regard to all or any of the matters in controversy in the suit. When, therefore, the appellate Court gives a decision in the appeal then the decree of the first Court is superseded and it merges in the appellate decree.

(71) The law provides that a decree once passed, except to the extent to which the Code gives the Court power to correct mistakes or accidental slips, could be vacated only either by way of an appeal or by way of a review.

(72) When an appeal is preferred from a decree of Court of first instance, the suit is continued in the Court of appeal and re-heard either in whole or in part, according as the whole suit is litigated again in the Court of Appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of First Instance. The mere fact that a matter is litigated both in the Court of First Instrance and again though only in part, in the Court of Appeal, cannot convert or split the suit into two and there can be only one final decree in that suit, viz., the decree of the Court of Appeal. There cannot be two final decrees of the Court of Appeal. There cannot be two final decrees in such a suit, one by the Court of first instance and the other by the Court of Appeal. Order 41, Rule 32, of the Code therefore, provides that the appellate judgment may be for confirming, varying or reversing the decree appealed against. If the appeal be against a portion of the decree only and the appeal be dismissed the decree will be one confirming as a whole the decree appealed against, including the portion not appealed against and the confirmation is not limited to the portion appealed against. If such appeal be allowed, the decree appealed against will not be reversed by the appellate decree but only varied or modified and confirmed as to the rest, i.e., the portion not appealed against. The portion appealed against and litigated in the Court of Appeal is varied or confirmed according to the objection taken, in the Court of Appeal to such part of the decree prevails or fails. The rest of the decree is confirmed because no objections raised thereto by the party concerned and it is not the function of a Court of Appeal as distinguished from Court of Revision to give relief to any party who has not applied to it in the form and within the time prescribed for appeal.

(73) When an appeal is preferred, the Court of Appeal is really seized of the whole suit though the relief given by it will be limited to the portion of the decree appealed against or objected to under Order 41, Rule 22, of the Code.

(74) If the appeal, therefore, terminates in a final decree and that decree confirms, varies or reverses the decree appealed against, whether the appeal be against the whole decree or only a part thereof, the date of such final decree is the starting point of limitation for the execution of the decree; per Bhashyam Ayyanger, J., in Krishtnama Charter v. Mangammal, ILR 26 Mad 91 (FB).

(75) Here we are not concerned with an appeal against the final decree after the rights have not only been determined but worked out and embodied in the final decree, but with a preliminary decree which is pending in appeal. A preliminary decree passed in a partition suit is open to appeal under Section 95 of the Code. On appeal being preferred from the preliminary decree, it does not become final as long as the appeal against it is not finally disposed of, because the decision of the trial Court is subject to the decision of the appellate Court. An appellate Court, which is a Court of appeal on facts as well as law, so that the appeal is a rehearing, may have to consider whether there are not such surrounding facts as to make it impossible to accept the finding of the trial Judge. A party to the suit has, on the cause being decided by the Court and when allowed under law, a vested right of appeal to the superior Court. A decree of a Court of first Instance, therefore merges. in the decree passed on appeal therefrom. The filing of the appeal puts the decree in jeopardy although until it is reversed or modified it remains effective. The fact that a preliminary decree has been passed is of no effect when an appeal is lodged against it and the effect of that decree is put in jeopardy. When the law gives a right of appeal from a judgment of a trial Court on questions of fact as well as on questions of law, the Court of appeal after carefully weighing and considering the judgment had to make up its mind and cannot shrink from overruling it, if on a full consideration of all the materials, it is satisfied that that judgment is clearly wrong.

(76) Section 97 of the Code specifically provides that where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The preliminary decree, therefore, could not under Section 97 of the Code be questioned on appeal from the final decree if no appeal has been preferred from the preliminary decree itself.

(77) If the appellate Court, therefore, has, on appeal under S, 96, such wide powers, as also other powers given under Section 107 of the Code, and. if such be the scope of an appeal, how can then it be said that "the right to sue has disappeared without (sic with) the mere passing of the preliminary decree, before the final decision of the appeal which is pending from such a preliminary decree

(78) The Privy Council decision in 67 Ind App 406: (AIR 1940 PC 215 [LQ/PC/1940/45] ), wrongly relied upon by Mr. Chatterjee, does not lend any assistance to his argument. In that case a Mohammadan brought a suit against his co-heirs for administration. One of the defendants, who had the same interest and was in the same position as of the plaintiff, died and no application was made by the plaintiff to bring his heir on the record. It was held that the suit for administration did not come to an end by reason of abatement as against the deceased defendant, because, their Lordships said, it not uncommonly happens in a suit for administration that for one reason, or another, a particular interest is not represented before decree but is either provided for by the decree, or, is asserted at a later stage, under the decree, or is given effect by a party being permitted to attend certain accounts and enquiries so as to be bound by the result.

(79) Here, however, we are not concerned with an administration suit at all in which the ques- tion of "the right to sue" surviving or not surviving does not arise and to which Rule 10 of Order 22 applies.

(80) In Raj Chandar Sen v. Gangadas Seal, 31 Ind App 71 (PC), it was held by the Privy Council that an appeal abates i the appellant does not within the statutory period, apply to substitute his legal representative. In that case, the suit was for accounts and winding up the affairs of a partnership. A preliminary decree for accounts was passed and thereafter a final decree was also passed. Appeals against the final decree were preferred to the High Court. When the appeals came on for hearing before the High Court, a preliminary objection was taken that these appeals had abated and could not proceed in the absence of the executor of the deceased respondent The objection was upheld by the High Court. That order of the High Court was affirmed on appeal by the Privy Council. Lord Davey, who pronounced the opinion of the Board, said that it was not disputed that the right to sue did not survive against the other defendants alone, nor, could it be possibly contended that the appeals could proceed in the absence of a representative of the deceased respondent, and, therefore their Lordships observed, that the appeals before them had become idle and as such should be dismissed.

(81) On a review of the authorities, discussed earlier, therefore, the principles which emerge, and, which should govern the instant case, may be summed up thus:

(82) If a preliminary decree for partition has become final, the right to sue disappears, and, is extinguished, and, therefore, in such a case, the question of the right to sue surviving, or not surviving, does not arise If however, an appeal against such a preliminary decree is pending in appeal the right to sue exists and is kept alive till the appeal is finally disposed of. If therefore, an appellant dias, after such a preliminary decree has become final, but before the final decree, the right of action having been determined before his death by the preliminary decree the right to sue does not exist, and, therefore, to such a case Rule 110 and not Rule 3 of Order 22, would apply. If on the other hand, an appellant dies during the pendency of an appeal from the preliminary decree the right to sue exists and continues as long as the appeal is not finally disposed of, and, to such a case Rule 3, and not Rule 10 of Order 22 would apply. If the right to sue survives to the surviving appellant or appellants alone, to such a case Rule 2 of Order 22 would apply, and, in such a case, no application for substitution would be necessary. But, when the right to sue does not survive to the surviving appellant or appellants alone or where a sole appellant or sole surviving appellant dies and the right to sue survives to his legal representative who is not on record, the legal representative of the deceased appellant must be made a party to the appeal, by an application under Rule 3, Order 22, within the time allowed by law. An appeal from a preliminary decree for partition, in the absence of a single co-sharer of the land under partition, cannot proceed. If however the preliminary decree has become final and thereafter and before the passing of the final decree a party dies, to such a case Rule 10 of Order 22 would apply and not Rule 3, of Order 2

2. If however, the preliminary as well as the final decree both have become final and a party dies after the final de-j cree, to such a csse Rule 10, Order 22 also would not apply.

(83) In the present case, it was not contended, as it could not be successfully contended, that there could be a partition in the absence of a single co-sharer of the lands under partition or that the appeal could proceed in the absence of a single co-sharer. Admittedly, the legal representatives of the deceased appellant 13 are not already on the record in any capacity whatsoever, it cannot, therefore, be said, nor has it been so argued, that the right to appeal vested in the deceased appellant 13 did survive to the remaining appellants on the record. In such a situation, therefore, it was necessary to make the legal representatives of the deceased appellant 13 to whom the right to appeal survived, and (Illg.) transmitted parties to the appeal, as provided by Rule 3, Order 22, as to such a case Rule 3, and not Rule 10, of Order 22 applied.

(84) I would, therefore, answer the question, posed by me earlier in my judgment, by saying that Rule 3, and not Rule 10 of Order 22, applies to the instant case. 84A. For these considerations, therefore, I would hold that Rule 10, of Order 22, does not apply here, and, as such the application made by the appellant and others under Rule 10 of Order 22, is not maintainable, and, accordingly it is rejected.

(85) In this view of the matter, it must be held, as mentioned earlier also that the appeal has abated as against the heir of the deceased appellant 13.

(86) Because of my above decision that the appeal has abated as against the heirs of the deceased appellant, bis legal representatives cannot now be added as parties to the appeal under Rule 10, Order 1, as prayed for by circumventing the provisions of Rule 3, Order 22, and, therefore, the application made under Rule 10, Order 1, is also rejected.

(87) The question as to what would be the effect of this abatement on the entire appeal will be considered hereafter.

(88) There will be no order for costs.