HARI SWARUP,J. - (1.) THIS revision has been filed against an order of the first appellate court setting aside its earlier order by exercising powers under section 151 of the Code of Civil Procedure.
(2.) ONE Kunj Behari filed a suit against Ramlal, Shyam Sunder and Ram Jiwan. The suit was decreed exparte on 6-4-1967. On 8-4-1967 an application was moved by the defendants for setting aside the exparte decree. During the pendency of this application, Ram lal died on 9.7-1967. An application for substitution of his legal representatives was made that was allowed on 27-1-1968. Smt. Kesar, Daya Shanker, Ram Shanker and Shiv Kumar were brought on record as legal repre­sentatives of Ramlal. On 27-4-1968, the application to set aside the exparte decree was dismissed by the trial court. An appeal was filed against this order by Shyam Sunder and Ram Jiwan and also the name of Ramlal was shown as the appellant. His legal representatives were neither the appellants nor respondents. The appellate court, by its order dated 22-7-1969, allowed the appeal and also the application to set aside exparte decree, with the result that the decree passed exparte was ordered to be set aside. On 5-9-1970 the plaintiff moved an appli­cation in the appellate court with a prayer that the order dated 22-7-1969 be recalled and the trial court be directed not to proceed with the case. The appellate court has allowed this application by purporting to exercise power under section 151 C.P.C. and has directed the appeal to be listed for re-hearing. It is against this order that the present revision has been preferred. The learned first temporary Civil Judge has belaboured under mis­apprehension of facts. He has stated in his judgment that the previous order was passed by him in ignorance of fact that Ramlal was dead. The present judgment shows further ignorance of fact. He appears to think that none representing the interest of Ramlal is on record. He has given his judgment on the premise that the previous order of his had been passed to give some benefits to a dead person. He has forgotten that after RamlaPs death his legal representatives had been brought on record and they were the defendants in the case after Ramlal's death. The effect of substitution was that the name of Ramlal no longer existed but of his legal representatives came on the record. They were all alive. It is on this misapprehension of facts that the court below has applied the decisions of the Supreme Court, this Court and other courts in setting aside the earlier order-. In Rameshwar Prasad and others v. Shambehari Lal Jagannath and another A.L.R. 1963 S.C. 1901, all the plaintiffs whose suit had been dismissed had filed an appeal and thereafter one of them died and his heirs were not brought on record. Similarly in Baijnath v. Ram Bharose A.L.R. 1953 Alld. 565 out of the three defendants one had died and his legal representa­tives had not been brought on record. There is no doubt that a decree cannot be altered in favour of persons who are dead or are not on record as parties. In the present case, however, the effect of the appellate order dated 22-7-1969 was to give benefit not to any dead person but to the defendants who were alive and though parties to in the suit were not parties in the appeal. To such a case Order 41, Rule 4 C.P.C. was clearly applicable, which provides:- "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or 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 plaintiffs or defendants, as the case may be."
(3.) INTERPRETING this provision the Supreme Court in Maliabir Prasad v. Jaga Ram and others, ruled .- "Power of the appellate court under Order 41 Rule 4 to vary or modify the decree by 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 proceedings before the subordinate Court and against whom a decree proceed 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." ;