JUDGMENT
Jwala Prasad, Acting C.J.
1. This is an appeal against an order passed by the Subordinate Judge of Gaya, dated the 18th December 1923, setting aside an order of the Munsif of Gaya, dated the 19th June 1923.
2. The order in question relates to the execution of a decree obtained by the appellant against a number of persons as defendants. The decree is dated the 17th February 1922 and is said to be a rent-decree. An objection was raised by some of the judgment-debtors to the execution of the decree upon the ground that three the judgment-debtors were dead at the time when the decree was passed and consequently the decree was a nullity and incapable of execution. This objection was overruled by the Munsif who held that there was no good evidence to show that three of the judgment-debtors were dead before the decree was passed.
3. On appeal the Subordinate Judge held that there was good evidence as to one of the judgment-debtors Chhedi having died before the decree was passed.
4. This is a finding of fact and is not capable of challenge in second appeal. The learned Subordinate Judge, however holds that as one of the judgment-debtors, Chhedi, had died before the’ decree was passed the entire decree is a nullity and incapable of execution. Upon this view he allowed the appeal and dismissed the execution case.
5. As a point of law the learned Subordinate Judge is not correct in stating that the death of one of the defendants necessarily majses the entire decree null and void. The suit apparently was instituted against a number of defendants with respect to arrears of rent due from them. The decree or a copy thereof is not on the record but the description thereof in the application for execution shows that it was a rent-decree and the Munsif also incidentally refers to it as a. rent-decree. If it was a rent-decree the liability of the defendants was joint and several and the plaintiff was entitled to enforce his claim for rent against the defendants, jointly and severally. Therefore upon the death of one of the defendants he was entitled to continue his suit against the remaining defendants and the effect of the omission to bring the legal representatives of the. deceased defendant upon the record would only be the abatement of the suit against that defendant and not necessarily the abatement of it against all the defendants. Such is the law as laid down in Ruler 4 of Order XXII of the C.P.C. which runs thus:
4(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendant alone, or a sole defendant or sole surviving defendants dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
Clause (3) of that rule says:
Where within the time limited by law no application is made under sub-Ruler (1), the suit shall abate as against the deceased defendant.
6. Therefore if the right to sue against the remaining defendants survives the death of one of the defendants will not cause the abatement of the entire suit but only as against the deceased defendant. The present Code of 1908 has set at rest the. doubt that possibly arose under the old law. As a matter of fact under the old law although the wording was not clear the interpretation given to it by the several High Courts shows that the suit would not necessarily abate on account of the death of one of several defendants if the right’ to sue survives against the remaining defendants. The authorities have been referred to in Mulla’s Code of Civil Procedure under Order XXII, Ruler 4 and I need only refer to two cases. Abdul Aziz v. Basdeo Singh 17 Ind. Cas. 99 : 34 A. 694 : 10 A.L.J. 183. and Joy Gobind Laha v. Manmoth Nath Banerji 33 C. 580, quote these authorize not only for the purpose of showing the suit will not abate by reason of the death of one of the defendants provide the right to sue survives against the remaining defendants but also for the pro position that a claim for rent is joint and several as against the tenants. Tin placitum in the Allahabad case which agrees with the body of the ruling runs as follows:
Held that the liability of joint holders of a fixed rate tenancy to payment of rent is joint and several and not joint only, The failure, therefore of the plaintiff in a suit for rent against several fixed rate tenants jointly to bring upon the record the representative of a deceased defendant is no bar to the continuance of the suit against the remaining defendants.” The learned Judges observe that the case seems to be covered by the decision of the Calcutta High Court in Joy Gobind Laha v. Manmotha Nath Banerji 33 C. 580. That was a suit against several persons for the recovery of the rent of a holding. Their Lordships also observed that they found no reason for distinguishing between the liability of several holders of a fixed rate tenancy and the liability of several tenants of any other holding. Therefore if the decree was with respect to rent the liability of the judgment debtors was joint irrespective of the nature of the holding. Consequently the death of judgment-debtor, Chhedi, does not at all affect the liability of the other defendants and the suit did not abate against these defendants and the decree against those defendants remains valid. As observed above, I have referred to the authorities of the Calcutta and Allahabad High Courts because they related to claims for rent but the cases referred to by Mr. Mulla which I have carefully gone through show that the principle applies to all kinds of claims where the claim can be enforced jointly and severally against the defendants. The test, therefore, is whether the liability of. the defendants or the judgment-debtors is joint and several in order to determine whether the death of one of the defendants, or judgment-debtors renders the entire decree null and void. It would have been well if we has a copy, of the decree upon the record but in the absence of the decree I rely on the description thereof given in the execution petition and the judgment of the Munsii I, therefore, set aside the order of the Sub-ordinate Judge and restore that of the Munsif and direct the execution to process except as against the deceased ju.lgmem-debtor Chhedi Singh and his legal representatives. The decree so far as Chhedi and his” legal representatives are concerned is hull and void. The appeal is, decreed with costs. There is no appearance on behalf of the opposite party.
Macpherson, J.
7. I agree.