JUDGMENT
Dass, J.
1. This appeal must be, dismissed, It is contended that the order appealed from could not possibly, have affected the decree sought to be executed because, as the judgment of the lower Appellate Court shows, the defendants Nos. 3, 7 and 15 claimed definite shares in the subject-matter of the dispute. We have been referred to the decree passed by the lower Appellate Court in support of the argument that defendants Nos. 3, 7 and 15 claimed finite Identifiable lands. The decree of the Lower appellate Court, however does not Irresistibly lead to that compulsion but in my opinion, the appellant must fall even If we assume that the defendants claimed definite identifiable lands out of the lands. in suit. The plaintiff, appealed, against the decree of the lower Appellate Court by which the lower Appellate Court and dismissed the plaintiff’s result as against the defendants Nos. 3, 7 and 15. No doubt the plaintiff appealed only against that portion of the judgment of the lower Appellate Court by which had dismissed the suit as against the defendants Nos. 3, 7 and 15; but in appealing against the decision of the lower. Appellate Court the plaintiff put it. In the power of the High Court to say that the whole suit of the plaintiff should be dismissed. It is contended by the learned Vakil that the High Court had no such power under Order XLI, Rule 33. The question is not whether the High Court would have exercised this power the question is whether there was a possibility of the High Court In the appeal of the plaintiff dismissing the plaintiff’s entire suit. In my opinion the case of the plaintiff being that all the defendants were Joint tort-feasers and had jointly taken possession of the plaintiff’s land, it was open to the High Court, under, the provision of Order XLI, Rule 33, to dismiss the plaintiff’s entire suit if it came to the conclusion that his appeal as against the defendants Nos. 3. 7 and 15, could not succeed, I do not say that the High Court would, In the particular case, or in fact in any case take that course; but the possibility was, always there and in my opinion, the plaintiff was entitled to wait till the appeal was disposed of in the High Court before proceeding with his execution as against these defendants against whom his suit had succeeded in the Court of first instance. As it was laid down In Christian Sens Law v. Benarsi Prasad Chowdhury 22 Ind. Cas. 685 : 19 C.W.N. 287 the Court should see whether the original decree was really one decree or an incorporation of Several decrees and whether the appeal against it imperiled the whole decree or not for the execution of which the application is made. In my opinion the appealed presented by the plaintiff to this Court against the decree of the lower Appellate Court imperiled his whole decree. That being so according to the decision of the Calcutta High Court in Christiana Sens Law v. Benarsi Prosad Chowdhury 22 Ind. Cas. 685 : 19 C.W.N. 287, and Loke Nath Singh v. Gaju Sirgh (2) time would begin to run from the date of the decree of the High Court.
2. The order of the Court below is right and the appeal must be dismissed with costs.
Kulwant Sahai, J.
3. I agree.
