Case Note & Summary
This judgment concerns two connected civil appeals arising from suits for specific performance and eviction. In Civil Appeal No. 172 of 2026, the High Court had dismissed the appeal as abated due to non-substitution of one legal heir (Murarilal). The Supreme Court held that there was no abatement, as the estate of the deceased appellant Kishorilal was sufficiently represented by other legal representatives and transferees pendente lite. It also noted that earlier High Court orders had already held that the appeal had not abated, attracting the principle of res judicata. Typographical errors in orders were held to be inconsequential. Accordingly, the appeal was restored for decision on merits. In Civil Appeal No. 173 of 2026, the connected eviction appeal was also restored, as its dismissal was consequential to the erroneous finding of abatement in the first appeal.
Headnote
A) Civil Procedure Code, 1908 – Order XXII Rules 3, 4 & 11 – Abatement of appeal – Non-substitution of legal representatives – Issue whether appeal abates on non-substitution of one of several legal heirs – Trial court decreed suit for specific performance – First appeal filed by vendor and transferees pendente lite – During pendency, one of the legal heirs of deceased vendor died and his LRs were not substituted within limitation – High Court held appeal abated – Supreme Court examined whether estate was sufficiently represented – Found that remaining legal heirs along with transferees pendente lite were already on record and adequately represented estate – Distinguished between non-substitution of all LRs and non-substitution of one LR – Held that where estate is sufficiently represented, appeal does not abate – High Court erred in dismissing appeal as abated – Appeal restored (Paras 38–43). B) Specific Relief – Suit for specific performance – Necessary parties – Vendor and subsequent transferee – Law reiterated that vendor is a necessary party as decree requires execution of sale deed by vendor along with subsequent purchaser – However, on death of vendor, if some of his legal heirs are already on record, requirement of representation stands satisfied – Non-substitution of one heir does not render decree inexecutable nor cause abatement – Held accordingly (Paras 32–36, 39–40). C) Transfer of Property Act, 1882 – Section 52 – Doctrine of lis pendens – Effect of transfer during pendency of suit – Transfer pendente lite not void but subservient to rights determined in suit – Transferee pendente lite can represent estate of transferor and continue proceedings – Such presence supports sufficient representation of estate – Held accordingly (Paras 10, 38). D) Civil Procedure – Res judicata – Applicability at different stages of same proceedings – Earlier order of High Court had already held that appeal had not abated and permitted impleadment of remaining heirs – Subsequent order taking contrary view held impermissible – Principle of res judicata applies between different stages of same litigation – High Court barred from re-agitating same issue – Held accordingly (Paras 40–42). E) Civil Procedure – Clerical/typographical error – Deletion of party – Order erroneously deleting name of original appellant instead of deceased LR found to be typographical mistake – Such error curable under Sections 151 and 152 CPC – Cannot be used to defeat substantive rights – Held accordingly (Para 44). F) Civil Procedure – Impleadment of legal heirs – Order I Rule 10 CPC – Where estate already sufficiently represented, impleadment of remaining heirs as proforma respondents permissible – No necessity to set aside abatement when no abatement in fact occurred – Held accordingly (Paras 45–46). G) Held – High Court erred in declaring appeal abated – Estate of deceased sufficiently represented by remaining legal heirs and transferees – Earlier finding operated as res judicata – Impugned orders set aside – Appeals restored to file for decision on merits (Paras 47–48
Issue of Consideration
The Issue of Consideration was whether the appeal had abated due to non-substitution of legal representatives of a deceased appellant and whether the High Court erred in dismissing the appeal as abated
Final Decision
The Supreme Court allowed the appeals, set aside the High Court order dated 12.09.2017, and restored First Appeal No. 213 of 2000 and First Appeal No. 217 of 2000 for adjudication on merits
Law Points
- Order 22 Rule 4 of the Code of Civil Procedure
- 1908 (CPC) -- Order 22 Rule 11 of the CPC -- Order 1 Rule 10 of the CPC -- Doctrine of Lis Pendens -- Abatement of Appeal -- Representation of Estate of Deceased Party -- Substitution of Legal Representatives -- Typographical Errors in Court Orders -- Setting Aside Abatement -- Condonation of Delay
