7...But this matter stood concluded by the decision of this Court in Rameshwar Prasad v. Shyam Beharilal Jagannath . In that case the appeal had been filed in the High Court not by any one or some of the plaintiffs against the whole decree hut had been filed by all the plaintiffs jointly. One of the appellants died and his legal representatives were not impleaded. It was laid down by this Court that Order 41, Rule 4 could not be invoked because the appellate Court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under that rule because if all the plaintiffs or defendants had appealed from the decree and any one of them had died the appeal had abated so far as he was concerned under Order 22, Rule 3.
95 followed by Rani Dhan Dei Kuer v. Fatima Zuhra AIR 1939 All 698, Baijnath v. Ram Bharose ; Rameshwar Pd. v. Shyam Behari Lal AIR I960 All 741, Anwar Khan v. Dy Director of Consolidation of this Court, and State of Punjab v. Nathu Ram ; Ram Swamp v. Munshi and Dwarka Prasad v. Hari Kanta Prasad of the Supreme Court which laid down the principle that in case the right and interest of the surviving appellants or respondents with the deceased appellant or respondent, as the case may be. Whose legal representatives have not been brought on the record, are joint and indivisible, the appeal cannot be heard at the instance of the surviving appellants or against the surviving respondents.