Dua, J. - (1.) THIS regular second appeal has been referred by a learned Single Judge to a larger Bench because there appears to be a serious conflict of judicial opinion on the question whether an order setting aside an abatement can be questioned on appeal against the final decree, as provided by Section 105 Code of Civil Procedure.
(2.) AFTER going through the facts, however, it appears to us that this question does not arise for consideration and that the appeal can be disposed of without going into it. For the purposes of understanding the controversy which calls for determination at this stage, the relevant facts may briefly be stated. Defendants Nos. 14 to 16 sold the land in dispute to Defendants Nos. 1 to 13 for a sum of Rs. 4000/ - by means of a registered sale deed dated 2nd December 1957. The Plaintiffs claiming to be the heirs of the vendors instituted the present suit for possession by pre -emption of the land so sold. It was contested by the vendees and one of the issues related to limitation. The trial Court on 24th August 1959, passed a decree in favour of the Plaintiffs on payment of Rs. 4,106/ -, the amount to be deposited by 5th October 1959 after deducting one -fifth of the sale price already deposited. It has been stated before us at the bar on behalf of the Appellants and not disputed on behalf of the Respondents that on 27th June 1959 Bakhtawar, Defendant No. 12, one of the vendees, had died and his legal representatives were not brought on the record in the trial Court.
(3.) THE vendees appealed from the pre -emption decree dated 24th October 1959 on 27th October 1959 ; the legal representatives of the deceased Bakhtawar also joined in the appeal. The very first ground taken in the memorandum of appeal preferred in the Court of the District Judge related to the death of Bakhtawar and it was urged that the legal representatives of the deceased having not been brought on the record within time, the decree against him being against a dead person was a nullity. In the second ground it was urged that the suit abated in toto on account of non -impleading of the legal representatives of Bakhtawar as the claim was not separable. The other grounds of course related to other points decided by the Court of first instance against the vendees. On 28th October 1959, notice of the appeal was directed to go to the Respondents in that Court for 2nd December 1959. On 7th November 1959, the guardian for the minors was served. On 7th December 1959, an application was made on behalf of the Respondents Nos. 1 to 5 under Order 22, Rules 4 and 9, Code of Civil Procedure Code, for bringing on record the legal representatives of Bakhtawar deceased, it being also prayed that they should be deemed to have been brought on record at the stage of the suit in the trial Court. The learned District Judge granted this application on 8th January 1960 and also disposed of the appeal on the same day, though by a separate order.;