1. ' This second appeal is directed against the order of District Judge, Sanghar dated 15-5-1973 whereby he dismissed the above appeal as abated. The following facts may be stated which are relevant for the purposes of disposal of this appeal.
2. ' One Dr. Nawab Khan died on 9-3-1939 leaving behind two widows namely Bibi Bano and Bibi Zainab along with one brother Raja Khan as his only heiRs, The property left behind by the deceased Nawab Khan were accordingly inherited by the aforesaid two widows and his brother Raja Khan in proportion of 4 Annas and 12 Annas respectively. It appears that after the death of Nawab Khan Bibi Bano instituted a suit bearing No, 69/1939 for declaration before First Class Civil Judge, Hyderabad, against Raja Khan and Bibi Zainab in which she claimed herself to be the absolute owner of the properties left behind by Dr. Nawab Khan alongwith Bibi Zainab in equal share. This suit was compromised between the parties on 3-8-1940 and according to the compromise arrived at Bibi Bano was given life state in the property of the deceased Nawab Khan with no power to sell, mortgage, gift or alienate the same in any way. It was provided in the compromise that after the death of Bibi Bano the property will revert back to Raja Khan. The compromise filed in the above suit recognized the sale of 2 Annas share by Mst. Bibi Zainab to one Ghanshamdas and another. The property which was given to Mst. Bibi Bano for her life consisted of Deh Nos. 21, 6 and 12 of Taluka Sinjuare and Block No, 94 in Deh 21 and half half the garden left by deceased Nawab Khan. The compromise was given effect to from Kharif crop of 1940 but it is an admitted position that no decree was drawn in terms of the above compromise as this compromise was to be typed on a stamp paper which was never supplied. After the death of Bibi Bano the property was taken over under section 9 of the Courts of Ward Act on 8-12-1941. Mehdi Khan who was the brother of Mst. Bibi Bano instituted Suit No, 10 of 1968 against the heirs of Raja Khan and his deceased sister (Mst. Jannat Bi) husband, son and daughters claiming that the properties given to Mst. Bibi Bano under the compromise decree in Suit No,69/1939 was inherited by Mehdi Khan and her sister's heirs namely defendants 6 to 13 in the suit as the sole heirs of Bibi BaNo, The suit filed by Mehdi Khan was decreed by the trial Court and late Mst. Bibi Bano was held entitled to 2 Anna share in the property of Nawab Khan and as a result of this decree Mehdi Khan got 2/3rd out of the share of Bibi Bano while the remaining 1/3rd share went to defendants 6 to 13. An appeal was filed by the heirs of Raja Khan against the judgment and decree of the trial Court and during the pendency of that appeal Ahmad Mukhtar and Muhammad Anwar won were respondents 4 and 5 died on 16-8-1970 and 20-10-1969, respectively. It is an admitted position that no application was made for impleading the legal heirs of said Ahmad Mukhtar and Muhammad Anwar (respondents 4 and 5) in the appeal within time whereupon the appeal abated. However, before the learned District Judge the appeal was sought to be pressed on merits on the ground that the legal heirs of respondents 4 and 5 were not necessary party and were only pro forma respondents, therefore, the matter could proceed on merits and the appeal could be determined in so far the necessary party to appeal were before the Court. The contention of the appellants was repelled by the learned District Judge by the impugned judgment and he came to the conclusion that the heirs of respondents 4 and 5 were a necessary party and in their absence there is a possibility of conflicting decree being passed in the appeal. He accordingly declared the whole appeal as abated. In this second appeal the learned counsel for the appellant firstly contended that in view of the amendment brought in the Code of Civil Procedure in the year 1972 the appeal could not abate as a result of the death of any of the respondents in the appeal and alternatively it is contended by the learned counsel that the death of respondents 4 and 5 could not affect the validity or maintainability of the appeal and the matter could be decided by the learned First Appellate Court in so far the parties were present before him. None of the above contentions raised by the learned counsel for the appellants can be accepted. Respondents 4 and 5 admittedly died much before the amendment in the Code o Civil Procedure and these amendments being not retrospective in operation could not save the appeal from abatement. It is, therefore, rightly held by the learned District Judge that as a result 'of failure on the part of the petitioner to bring the legal representatives of Ahmad Mukhtar and Muhammad Anwar on record the appeal in so far these two respondents were concerned abated. The alternate contention o the learned counsel for the appellant is that in spite of the abatement of appeal against Ahmad Mukhtar and Muhammad Anwar the appeal could not be dismissed as a whole as having abated because the other parties were present before the Court and the learned District Judge should have decided the matter in so far it related to the parties before him. The appeal was held by the learned District Judge a abated in its entirety on consideration that there was a possibility of conflicting decree in the event the appeal was heard and decided on merits. The reasons given by the learned District Judge for declaring appeal abated as a whole are not only sound but they are also not open to any exception. It is an admitted position that under the decree which was in appeal before the District Judge respondents 4 and 5 along with others got 1/3rd share of the property which was subject- matter of the suit. In these circumstances the learned District Judge was justified in saying that he could not decide the appeal of the present appellants which was also directed against the share which respondents 4 and 5 got as a result of decree of the trial Court. I, therefore, see no reason to defer from the conclusion arrived at by the learned District Judge in the above case. There is no merits in this appeal which is accordingly dismissed but as the respondents have not appeared and contested the appeal there will be no order as to costs.