Suresh Chandra(Deceased) Thr. Lrs. vs. Parasram

2025 INSC 873
REPORTABLE


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS……….. OF 2025
(Arising out of SLP (C) Nos.15900-15902/2022)


SURESH CHANDRA (DECEASED) THR. LRS. & ORS.
…APPELLANT (S)
VERSUS
PARASRAM & ORS. …RESPONDENT (S)


J U D G M E N T


MANOJ MISRA, J.

1. Leave granted.

2. These appeals arise from Civil Suit No.13 of 1983
(renumbered 16A of 1997), which was dismissed by the trial
court and decreed by the first appellate court. On second
1 2
appeal before the High Court , by the impugned order dated
21.02.2022, the appeal of the appellant(s) herein was
declared to have abated due to non-substitution of the legal
Signature Not Verified

1
Second Appeal No.446 of 2001
2
The High Court of Madhya Pradesh at Gwalior
Digitally signed by
BORRA LM VALLI
Date: 2025.07.18
17:59:03 IST
Reason:


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representatives (for short LRs) of Ram Babu (i.e., appellant
no.2 in the second appeal) within time. By the second
impugned order dated 04.08.2022, the High Court rejected
3
the applications preferred for condonation of delay in
applying to set aside abatement and for substitution of the
LRs of deceased Ram Babu.
FACTS:
3. The facts relevant for deciding the present appeal are
as follows:
(i) Suit No.13 of 1983 (renumbered as 16A of 1997) was
instituted against Suresh Chandra (predecessor-in-
interest of the appellants herein) and Ram Babu by the
respondent seeking declaration, recovery of possession,
mesne profits in respect of a house.
(ii) Plaintiff claimed exclusive title over the suit property
through its ancestor Tej Singh and pleaded that the
defendants were his tenant.
(iii) Defendants i.e., Suresh Chandra and Ram Babu,
filed a joint written statement in the suit.

3
MCC No.697 and MCC No.700 of 2022


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(iv) Suresh Chandra died during the suit proceeding, his
LRs, namely, the appellants, also filed their written
statements.
(v) In the written statement, while denying the alleged
tenancy, the defendants claimed title over the suit
property through their ancestor late Gokul Prasad who,
according to them, had derived exclusive interest in the
suit property through a partition with his brothers in the
year 1947.
(vi) The trial court dismissed the suit against which an
appeal was preferred by the plaintiff.
(vii) The first appellate court decreed the suit of the
plaintiff against which the LRs of Suresh Chandra and
Ram Babu filed the second appeal.
(viii) During the pendency of the second appeal,
appellant no.2 (Ram Babu) died on 19.08.2015.
Information of his death was given to the Court on
04.04.2016. However, his LRs were not brought on
record within time.
(ix) The High Court vide first impugned order dated
21.02.2022 declared the appeal to have abated.


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(x) To set aside abatement and to substitute the LRs of
Ram Babu two set of applications were filed along with
delay condonation applications. One set, namely, MCC
No.700 of 2022 was filed by the appellants (i.e., LRs of
Suresh Chandra, who were already on record) and the
other set, namely, MCC No.697 of 2022 was filed by LRs
of Ram Babu. Both were rejected by second impugned
order dated 04.08.2022.
4. Aggrieved by the aforesaid orders, the appellants are
before us.
5. We have heard Shri Jayant Mehta, learned Senior
Counsel for the appellants; Shri N.K. Mody, learned Senior
Counsel for the contesting respondent; and have perused the
record.
APPELLANTS’ SUBMISSIONS
6. The learned counsel for the appellants submitted
that, on non-substitution of legal heirs of a dead co-
appellant, to determine whether the appeal abated partially,
or wholly, what needs to be examined first is whether the
surviving appellant has an independent right to pursue the
appeal. If yes, whether he could seek for reversal of the entire
decree under appeal. If not, then whether the decree in


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favour of the surviving appellant would result in a decree
contradictory or conflicting with the one qua the deceased
party. According to him, the appellants’ (L.Rs of Suresh
Chandra’s) right was independent of the deceased appellant
4
(Ram Babu) and as under Order XLI Rule 4 of the Civil
5
Procedure Code, 1908 one of the defendants can seek
reversal of the whole decree, when the decree is based on
ground common to all, there could be no abatement of the
appeal. In the alternative, it was submitted that abatement
can always be set aside when substitution of LRs is applied
for by showing sufficient cause for the delay. It was
contended that the appellants as well as LRs of deceased
Ram Babu applied for substitution by showing sufficient
cause for the delay, therefore, the High Court ought to have
set aside the abatement and proceeded to decide the appeal
6
on merit. Certain decisions were cited by appellants’ counsel
which shall be dealt with, if considered necessary.

4
Order XLI Rule 4. One of several plaintiffs or defendants may obtain reversal of whole decree where it
proceeds on ground common to all.— Where there are more plaintiffs or more defendants than one in a suit, and the
decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the
plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or
vary the decree in favour of all the plaintiffs or defendants, as the case may be.
5
CPC
6
Decisions cited by the appellant : (i) Delhi Development Authority v. Diwan Chand Anand, (2022) 10 SCC 428;
(ii) Sakharam v. Kishanrao, 2022 SCC OnLine SC 2035; (iii) Gurnam Singh v. Gurbachan Kaur, (2017) 13 SCC 414;
and (iv) State of Punjab v. Shamlal Murari, (1976) 1 SCC 719; (v) Baij Nath v. Ram Bharose, AIR 1953 All 565
=1953 SCC OnLine All 43.


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RESPONDENT’S SUBMISSIONS

7. Per contra, the learned counsel for the contesting
respondent submitted, firstly, the heirs of Ram Babu have
neither filed Special Leave Petition nor have joined as
petitioners, though impleaded as proforma- respondents,
therefore the order rejecting their substitution application
cannot be questioned. Secondly, the decree against the
defendants was joint and indivisible, therefore, if the decree
stands against Ram Babu, a decree in favour of Suresh
Chandra (through LRs) would result in a conflicting decree.
Further, the provisions of Order XLI Rule 4 do not exclude
the applicability of Order XXII Rule 3. Thus, once all
defendants join to file an appeal, death of one of the
appellants would necessitate a substitution, if the right to
sue does not survive on the surviving appellants alone.
Therefore, Order XLI Rule 4 would not come to the rescue of
the appellants. Hence, the whole appeal abated. To buttress
his submissions learned counsel for the contesting


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7
respondent cited certain decisions which we shall deal with,
if considered necessary.
ISSUES
8. Based on the rival submissions, following issues fall for
our consideration:

(a) Whether the order rejecting application(s) seeking
condonation of delay for setting aside abatement and
substitution of legal representatives of deceased-
appellant Ram Babu suffers from any legal infirmity?
(b) If the answer to (a) is in the negative, whether the
second appeal abated wholly or partially, or not at all,
on account of non-substitution of LRs of deceased
defendant-appellant no.2 (i.e., Ram Babu)?
ANALYSIS
Issue (a)
9. Issue (a) arises for our consideration because the High
Court rejected two set of applications. One filed by LRs of
Ram Babu and the other filed by LRs of Suresh Chandra (i.e.,

7
Decisions cited by contesting respondent’s counsel: (i) Baij Nath v. Ram Bharose, AIR 1953 Allahabad 565 =
1953 SCC OnLine All 43; (ii) State of Punjab v. Nathu Ram, AIR 1962 SC 89 = 1961 SCC OnLine SC 137; (iii)
Ram Sarup v. Munshi, AIR 1963 SC 553 = 1962 SCC OnLine SC 168; (iv) Pandit Shri Chand and others v. Jagdish
Parshad Kishan Chand and others, AIR 1966 SC 1427 = 1966 SCC OnLine SC 206; (v) Badni v. Shri Chand, AIR
1999 SC 107; (vi) Hemareddi (dead) through Legal Representatives v. Ramchandra Yallappa Hosmani, (2019) 6
SCC 756; Delhi Development Authority v. Divan Chand Anand & Ors. (supra); Ashok Transport Agency v.
Awadesh Kumar & Ors., (1999) SCC 567; Gurnam Singh v. Gurbachan Kaur (supra); Amba Bai v. Gopal, (2001) 5
SCC 570; and Venigalla Koteswarmma v. Madampati Suryamba, (2021) 4 SCC 246.


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the surviving appellants of the second appeal) who were
already impleaded. Both were filed after the High Court had
declared the appeal to have abated for non-substitution of
LRs of Ram Babu. No doubt, the Court has power to condone
the delay in filing an application for setting aside abatement
as well as for substitution and can set aside the abatement
8
in exercise of its power under Order XXII Rule 9 of CPC. But
before condoning the delay the Court must consider whether
sufficient cause has been shown for condonation.
10. In the instant case, death of Ram Babu took place
on 19.08.2015; 90 days period of limitation to move an
9
application for substitution , and 60 days limitation period
10
to set aside abatement , expired in the month of January
2016 itself. Importantly, through IA No.1621 of 2016 filed
by the respondent, the Court was informed about the death
of Ram Babu in 2016 itself, yet no application was moved till

8
Order XXII Rule 9. Effect of abatement or dismissal. – (1) Where a suit abates or is dismissed under this Order,
no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the
receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is
proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement
or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the Indian limitation Act, 1877 (15 of 1877), shall apply to applications under sub-
rule (2).
Explanation . -- Nothing in this rule shall be construed as barring, in any later suit, a defense based on the facts which
constituted the cause of action in the suit which had abated or had been dismissed under this Order.
9
Article 120 of the Schedule to The Limitation Act, 1963
10
Article 121 of the Schedule to The Limitation Act, 1963


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2022. In fact, the applications were filed after the appeal was
declared to have abated. Besides that, the surviving
appellant(s) and the deceased appellant were close relatives,
therefore, it cannot be believed that they were not aware of
the death of co-appellant Ram Babu. In these
circumstances, if the High Court found there was no
sufficient cause to condone the delay, no fault can be found
with its order as to justify our interference under Article 136
of the Constitution. Issue (a) is decided accordingly.
Issue (b)
11. Now the question arises whether the second appeal
abated wholly or partially on death of sthe deceased
appellant.
GENERAL PRINCIPLES RELATING TO ABATEMENT OF
AN APPEAL


12. Before we set out to address the aforesaid issue, an
overview of the provisions governing abatement of an appeal
11
under the CPC would be apposite. Order XXII Rule 1 of the
CPC lays down the general principle that if the right to sue
survives, the suit shall not abate on death of either the

11
Order XXII Rule 1 – No abatement by party’s death if right to sue survives. - The death of a plaintiff or
defendant shall not cause the suit to abate if the right to sue survives.


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12
plaintiff or the defendant. Order XXII Rule 11 makes it clear
that all previous rules i.e., rules 1 to 10 of Order XXII would
apply to appeals and for that purpose reference to the word
‘plaintiff’ would include an appellant; ‘defendant’ would
include a respondent; and suit would include an appeal. As
a logical corollary thereof, the right to sue includes the ‘right
13
to appeal’. Rule 2 of Order XXII deals with a situation
where one of the plaintiffs or defendants to a suit dies and
the right to sue survives to the surviving plaintiff(s) or
defendant(s). In a situation governed by Rule 2, the suit does
not abate; only a note is to be put that the right to sue
survives to the surviving plaintiff(s) or defendant(s). Order
14
XXII Rule 3 deals with a situation where one of two or more
plaintiffs dies and the right to sue survives, though not to the
surviving plaintiff(s) alone, or where the sole plaintiff dies

12
Order XXII Rule 11 – Application of Order to appeals. – In the application of this Order to appeals so far as
may be, the word ‘plaintiff’ shall be held to include an appellant, the word ‘defendant’ a respondent, and the word
‘suit’ an appeal.
13
Order XXII Rule 2 – Procedure where one of several plaintiffs or defendants dies and right to sue survives.
- Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to
the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the court shall cause
an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or
plaintiffs, or against the surviving defendant or defendants.
14
Order XXII Rule 3 – Procedure in case of death of one of several plaintiffs or of sole plaintiff. – (1) Where
one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or
a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court on the application made in that
behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the
deceased plaintiff is concerned, and, on the application the defendant, the court may award to him the costs which he
may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.


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and the right to sue survives. In such a case, if within time
limited by law no application is made for substituting the
legal representatives of the deceased plaintiff or plaintiffs, the
suit would abate so far as the deceased plaintiff is concerned.
15
Rule 4 of Order XXII is a provision corresponding to Rule 3
to deal with a situation where one of several defendants or
the sole defendant dies and the right to sue survives, though
not against the surviving defendant alone.
13. A plain reading of Rules 3 and 4 of Order XXII of the
CPC would create an impression that in absence of
substitution of the legal representatives of the deceased

15
Order XXII Rule 4 – Procedure in case of death of one of several defendants or of sole defendant. – (1) Where
one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants
alone, or a sole defendant or sole surviving defendant 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.
(2) Any person so made a party may make an any defence appropriate to his character as legal representative of the
deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the
deceased defendant.
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal
representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to
appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant
notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced
before death took place.
(5) Where --
(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an
application for the substitution of the legal representative of the defendant under this rule within the period
specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963
(36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5
of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the
application within the period specified in the said Act,
the court shall, in considering the application under the said Section 5 have due regard to the fact of such ignorance,
if proved.



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plaintiff or defendant, or the deceased appellant or
respondent, as the case may be, abatement is qua the
deceased plaintiff or defendant alone, in the context of a suit,
or the deceased appellant or respondent alone, in the context
of an appeal, provided the right to sue does not survive to the
surviving plaintiff(s) or appellant(s) alone, or against the
surviving defendant(s) or respondent(s) alone, as the case
may be. Though this is all that Rules 3 and 4 declare, the
law has evolved that in certain kinds of litigation the
consequences of abatement qua a party are not limited to the
deceased party alone; rather, it affects the litigation in its
entirety.
14. As to when an appeal would abate in its entirety for
non-substitution of legal representatives of a deceased party
depends upon the facts and circumstances of an individual
case. The law in this regard has been discussed in detail and
summarized by a five-Judge Bench of this Court in Sardar
Amarjit Singh Kalra (Dead) by LRs and Others v. Pramod
16
Gupta (Smt.) (Dead) by LRs and Others as under:
“21. ……………….. ( a ) In case of “joint and
indivisible decree”, “joint and inseverable or
inseparable decree”, the abatement of

16
(2003) 3 SCC 272


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proceedings in relation to one or more of the
appellant(s) or respondent(s) on account of
omission or lapse and failure to bring on record
his or their legal representatives in time would
prove fatal to the entire appeal and require to be
dismissed in toto, as otherwise inconsistent or
contradictory decrees would result and proper
reliefs could not be granted, conflicting with the
one which had already become final with respect
to the same subject-matter vis-à-vis the others;
( b ) the question as to whether the court can deal
with an appeal after it abates against one or the
other would depend upon the facts of each case
and no exhaustive statement or analysis could
be made about all such circumstances wherein
it would or would not be possible to proceed with
the appeal, despite abatement, partially; ( c )
existence of a joint right as distinguished from
tenancy-in-common alone is not the criterion
but the joint character of the decree, dehors the
relationship of the parties inter se and the frame
of the appeal, will take colour from the nature of
the decree challenged; ( d ) where the dispute
between two groups of parties centered around
claims or was based on grounds common
relating to the respective groups litigating as
distinct groups or bodies — the issue involved for
consideration in such class of cases would be
one and indivisible; and ( e ) when the issues
involved in more than one appeal dealt with as a
group or batch of appeals, are common and
identical in all such cases, abatement of one or
the other of the connected appeals due to the
death of one or more of the parties and failure to
bring on record the legal representatives of the
deceased parties, would result in the abatement
of all appeals.
xxxx xxxx xxxx
30. The question, therefore, as to when a
proceeding before the court becomes or is
rendered impossible or possible to be proceeded
with, after it had partially abated on account of
the death of one or the other party on either side
has been always considered to depend upon the
fact as to whether the decree obtained is a joint
decree or a severable one and that in case of a


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joint and inseverable decree if the appeal abated
against one or the other, the same cannot be
proceeded with further for or against the
remaining parties as well. If otherwise, the
decree is a joint and several or separable one,
being in substance and reality a combination of
many decrees, there can be no impediment for
the proceedings being proceeded with among or
against those remaining parties other than the
deceased. …
31. But, in our view also, as to what those
circumstances are to be, cannot be exhaustively
enumerated and no hard and fast rule for
invariable application can be devised. With the
march and progress of law, the new horizons
explored and modalities discerned and the fact
that the procedural laws must be liberally
construed to really serve as handmaid, make it
workable and advance the ends of justice,
technical objections which tend to be stumbling
blocks to defeat and deny substantial and
effective justice should be strictly viewed for
being discouraged, except where the mandate of
law inevitably necessitates it. …… At times, one
or the other parties on either side in the litigation
involving several claims or more than one,
pertaining to their individual rights may settle
among themselves the dispute to the extent their
share of proportion of rights is concerned and
may drop out of context, bringing even the
proceedings to a conclusion so far as they are
concerned. If all such moves are allowed to
boomerang adversely on the rights of the
remaining parties even to contest and have their
claims adjudicated on merits, it would be a
travesty of administration of justice itself.
32. The area of differences in the catena of
decisions brought to our notice is not so much
with reference to the principles to be applied to
different nature of decrees but only as to which
of the decree(s) falls, when or under what
circumstances under one or the other of the
classification i.e. joint and inseverable or joint
and severable or separable. This aspect seems to
have been adjudged in different cases depending
upon the nature/source of rights, the cause of


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action, the manner they were asserted by the
parties themselves and the contradictory nature
of decrees impossible of execution, likely to
result when considered differently. It is for this
reason any standardized formula was avoided
and the matter left for the consideration of
courts, on the peculiar nature of the cases
coming for determination. ……
33. Even assuming that the decree appealed
against or challenged before the higher forum is
joint and several but deals with the rights of
more than one recognized in law to belong to
each one of them on their own and unrelated to
the others, and the proceedings abate in respect
of one or more of either of the parties, the courts
are not disabled in any manner to proceed with
the proceedings so far as the remaining parties
and part of the appeal is concerned. As and when
it is found necessary to interfere with the
judgment and decree challenged before it, the
court can always declare the legal position in
general and restrict the ultimate relief to be
granted by confining it to those before the court
only rather than denying the relief to one and all
on account of a procedure lapse or action or
inaction of one or the other of the parties before
it. The only exception to this course of action
should be where the relief granted and the decree
ultimately passed would become totally
unenforceable and mutually self-destructive and
unworkable vis-à-vis the other part, which had
become final. As far as possible, courts must
always aim to preserve and protect the rights of
parties and extend help to enforce them rather
than deny relief and thereby render the rights
themselves otiose, “ubi jus ibi remedium” (where
there is a right, there is a remedy) being a basic
principle of jurisprudence. Such a course would
be more conducive and better conform to a fair,
reasonable and proper administration of justice.
34. In the light of the above discussion, we hold:
( 1 ) Wherever the plaintiffs or appellants or
petitioners are found to have distinct, separate
and independent rights of their own and for the
purpose of convenience or otherwise, joined
together in a single litigation to vindicate their


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rights, the decree passed by the court thereon is
to be viewed in substance as the combination of
several decrees in favour of one or the other
parties and not as a joint and inseverable decree.
The same would be the position in the case of
defendants or respondents having similar rights
contesting the claims against them.
( 2 ) Whenever different and distinct claims of
more than one are sought to be vindicated in one
single proceedings, as the one now before us,
under the Land Acquisition Act or in similar
nature of proceedings and/or claims in assertion
of individual rights of parties are clubbed,
consolidated and dealt with together by the
courts concerned and a single judgment or
decree has been passed, it should be treated as
a mere combination of several decrees in favour
of or against one or more of the parties and not
as joint and inseparable decrees.
( 3 ) The mere fact that the claims or rights
asserted or sought to be vindicated by more than
one are similar or identical in nature or by
joining together of more than one of such
claimants of a particular nature, by itself would
not be sufficient in law to treat them as joint
claims, so as to render the judgment or decree
passed thereon a joint and inseverable one.
( 4 ) The question as to whether in a given case the
decree is joint and inseverable or joint and
severable or separable has to be decided, for the
purposes of abatement or dismissal of the entire
appeal as not being properly and duly
constituted or rendered incompetent for being
further proceeded with, requires to be
determined only with reference to the fact as to
whether the judgment/decree passed in the
proceedings vis-à-vis the remaining parties
would suffer the vice of contradictory or
inconsistent decrees. For that reason, a decree
can be said to be contradictory or inconsistent
with another decree only when the two decrees
are incapable of enforcement or would be
mutually self-destructive and that the
enforcement of one would negate or render
impossible the enforcement of the other.”
(Emphasis supplied)


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17
15. In State of Punjab vs. Nathu Ram , which was
noticed and followed by the five-Judge Bench in Sardar
Amarjit Singh (supra) , this Court enumerated certain tests
to determine whether the whole appeal would abate on
account of non-substitution of the legal representatives of
one or some of the deceased parties. In this regard it was
observed:
“6. The question whether a court can deal with
such matters or not, will depend on the facts of
each case and therefore no exhaustive statement
can be made about the circumstances when this
is possible or is not possible. It may, however, be
stated that ordinarily the considerations which
weigh with the court in deciding upon this
question are whether the appeal between the
appellants and the respondents other than the
deceased can be said to be properly constituted
or can be said to have all the necessary parties
for the decision of the controversy before the
court. The test to determine this has been
described in diverse forms. Courts will not
proceed with an appeal (a) when the success of
the appeal may lead to the court coming to a
decision which be in conflict with the decision
between the appellant and the deceased
respondent and therefore which would lead to
court passing a decree which will be
contradictory to the decree which had become
final with respect to the same subject-matter
between the appellant and the deceased
respondent; (b) when the appellant could not
have brought the action for the necessary relief
against those respondents alone who are still
before the court; and (c) when the decree against
the surviving respondents, if the appeal

17
Referred to in Footnote 7


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succeeds, be ineffective that is to say, it would
not be successfully executed.”
(Emphasis supplied)
18
16. In Ram Sarup vs. Munshi there was a decree of
pre-emption against the defendant-appellants who had
bought the property from the co-defendants in the suit. One
of the appellants died and his legal representatives were not
brought on record. The issue which fell for consideration was
whether the whole appeal abated, or the abatement was qua
the deceased appellant only. Argument on behalf of the
surviving appellants was whatever might be the position as
regards the share to which the deceased appellant was
entitled in the property purchased, the interest of the
deceased was distinct and separate from that of the others
and that the abatement could, in any event, be only partial
and would not affect the continuance of the appeal by the
surviving appellants at least as regards their share in the
property. To deal with the above argument, this Court called
for the sale deed by which the appellants had purchased the
property. Upon consideration of the sale deed, the Court
found that it was not a case of sale of any separated item of

18
Referred to in Footnote 7


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 18 of 58



property in favour of the deceased appellant but of one set of
properties to be enjoyed by vendees in equal shares. Based
on that, the five-Judge Bench of this Court held:
“It is clear law that there can be no partial pre-
emption because pre-emption is the substitution
of the pre-emptor in place of the vendee and if
the decree in favor of the pre-emptor in respect
of the share of the deceased Mehar Singh has
become final it is manifest that there would be
two conflicting decrees if the appeal should be
allowed and the decree for pre-emption insofar
as appellants 2 to 5 are concerned is interfered
with. Where a decree is a joint one and a part of
the decree has become final, by reason of
abatement, the entire appeal must be held to be
abated.”
(Emphasis supplied)

17. Having regard to the aforesaid decisions, the law
governing determination of the issue as to whether
abatement of an appeal on non-substitution of a deceased
party is partial or whole, can be summarized as under:
1. The answer to the question whether the
entire appeal abates or it abates partially qua the
deceased party alone, will depend on facts of each
case and, therefore, no exhaustive statement about
the circumstances in which the entire appeal would
abate can be made.


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 19 of 58



2. As a matter of course courts will not proceed
with an appeal (a) when the success of the appeal
may lead to the court coming to a decision which is
in conflict with the decision between the appellant
and the deceased respondent which had become
final with respect to the same subject-matter
between the appellant and the deceased
respondent; (b) when the appellant could not have
brought the action for the necessary relief against
those respondents alone who are still before the
court; and (c) when the decree against the surviving
respondents, if the appeal succeeds, be ineffective
that is to say, it would not be successfully executed.
3. In a case of “joint and indivisible decree” or
“joint and inseverable or inseparable decree”, the
abatement of appeal in relation to one or more of
the appellant(s) or respondent(s) on account of
failure to bring on record his or their legal
representatives in time would prove fatal to the
entire appeal because proceeding qua the surviving
party or parties may give rise to inconsistent or
contradictory decrees.


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4. The question as to whether the decree is
joint and inseverable, or joint and severable or
separable, must be decided, for the purposes of
abatement or dismissal of the entire appeal, only
with reference to the fact as to whether the
judgment/decree passed in the proceedings vis-à-
vis the remaining parties would suffer the vice of
contradictory or inconsistent decrees.
5. A decree can be said to be contradictory or
inconsistent with another decree only when the two
decrees are incapable of enforcement or would be
mutually self-destructive and that the enforcement
of one would negate or render impossible the
enforcement of the other which means that the two
decrees are mutually irreconcilable or totally
inconsistent, that is, if laid side by side, the only
impression would be that one is in the teeth of the
other.
6. Where the plaintiffs or appellants have
distinct, separate and independent rights of their
own i.e., not inter-dependent upon the other, and
for the purpose of convenience, or otherwise, joined


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 21 of 58



together in a single litigation to vindicate their
rights, the decree passed by the court thereon is to
be viewed in substance as a combination of several
decrees in favour of one or the other parties and not
as a joint and inseverable decree.
7.
Existence of a joint right as distinguished
from tenancy-in-common is not the criterion of a
joint or inseverable or inseparable decree. The joint
character of the decree will take colour from the
nature of the decree challenged.
ILLUSTRATIVE CASES WHERE ENTIRE APPEAL STOOD
ABATED ON NON-SUBSTITUTION OF A DECEASED
PARTY

18. Now, we shall examine those decisions where this
Court held appeal to have abated in its entirety on non-
substitution of legal representatives of one of the deceased
parties.
19
19. In Hemareddi vs. Ramachandra , one
Govindareddi, the propositus died, leaving behind two
sons and a daughter. The plaintiffs were children of one of
the two sons. The second defendant was the wife of the

19
Referred to in Footnote 7


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 22 of 58



other son. The suit properties were alleged to be the
properties of the joint family of Govindareddi and his sons.
Suit was filed for injunction as also for declaration that
defendant no.1 is not the adopted son. Trial court
dismissed the suit and upheld the adoption. Against
which, an appeal was filed. During the pendency of the
appeal, one of the plaintiff-appellants died. His LRs were
not brought on record. The High Court took the view that
the entire appeal abated. The matter travelled to this
Court. The question that fell for consideration was whether
the whole appeal abated, or it abated qua the deceased
appellant only. Upholding the decision of the High Court,
this Court reasoned thus:
“17. ………. The appeal having abated in
regard to the late brother, the decree of the
trial court has become final qua the deceased
brother of the appellant. The effect of the same
is that the adoption is found legal. The result
of the appeal being allowed to proceed further
and succeed in the appeal would be the
passing of a decree by the High Court. The said
decree would be to the effect that the adoption
is invalid. The suit which was jointly filed by
the appellant and his late brother would have
to be decreed whereas the suit filed by the
appellant and his late brother stands
dismissed by the trial court. Both the decrees
cannot stand together. There would be
irreconcilable conflict. The defendants are
common. They would be faced with two


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 23 of 58



decrees regarding the same subject matter
which are irrevocably conflicting.”

20. In State of Punjab vs. Nathu Ram (supra) , the
State acquired on lease certain parcels of land belonging to
Labhu Ram and Nathu Ram for military purposes under the
Defence of India Act, 1939. Labhu Ram and Nathu Ram,
brothers, refused to accept the compensation offered to them
by the Collector and applied to the Punjab Government
through the Collector, under rule 6 of the Punjab Land
Acquisition (Defence of India) Rules, 1943. The State
Government referred the matter to an arbitrator under rule
10, who, after inquiry, passed an award ordering the
payment of an amount higher than what was offered by the
Collector. The State Government appealed against the award
to the High Court of Punjab. During the pendency of the
appeal, Labhu Ram, one of the respondents, died. The High
Court held that the appeal abated against Labhu Ram and
that its effect was that the appeal against Nathu Ram also
abated. The State Government appealed to this Court. While
dismissing the appeal, this Court, inter alia , observed:
“9. …… the award of the arbitrator in each of
these cases was a joint one, in favor of both the
respondents Labhu Ram and Nathu Ram. To
illustrate the form of the award, we may quote


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the award for the year 1945-46 in the
proceedings leading to Civil Appeal No.635 of
1957. It is:
“On the basis of the report of S Lal Singh,
Naib Tehsildar (Exhibit PW9/1) and
Sheikh Aziz Din, Tehsildar, (Exhibit
PW9/2), the applicants are entitled to
sum of Rs. 4140 on account of rent, plus
Rs.3872/ 8/0 on account of income tax
etc., due to the inclusion of Rs. 6193/8/0
in their total income, plus such sum as
the petitioners have to pay to the Income
Tax Department on account of the
inclusion of Rs. 4140 in their income as
awarded by this award.”
The result of the abatement of the appeal against
Labhu Ram is therefore that his legal
representatives are entitled to get compensation
on the basis of this award even if they are to be
paid separately on calculating their rightful
share in the land acquired, for which this
compensation is decreed. Such calculation is
foreign to the appeal between the State of Punjab
and Nathu Ram. The decree in the appeal will
have to determine not what Nathu Ram's share
in this compensation is, but what is the correct
amount of compensation with respect to the land
acquired for which this compensation has been
awarded by the arbitrator. The subject matter for
which the compensation is to be calculated is
one and the same. There cannot be different
assessments of the amount of compensation for
the same parcel of land. The appeal before the
High Court was an appeal against a decree
jointly in favour of Labhu Ram and Nathu Ram.
The appeal against Nathu Ram alone cannot be
held to be properly constituted when the appeal
against Labhu Ram had abated. To get rid of the
joint decree, it was essential for the appellant,
the State of Punjab, to include both the joint
decree holders in the appeal. In the absence of
one joint-decree holder, the appeal is not
properly framed. It follows that the State appeal
against Nathu Ram alone cannot proceed.”



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While holding so, the argument on behalf of the State
that Labhu Ram had an equal share in the land acquired
and, therefore, the appeal against Nathu Ram alone could
deal with half the amount of the award was rejected,
reasoning thus:
“10. …The mere record of specific shares in the
revenue records is no guarantee of their
correctness. The appellate court will have to
determine the share of Nathu Ram and
necessarily the share of Labhu Ram in the
absence of his legal representatives. This is not
permissible in law. Further, the entire case of
Labhu Ram and Nathu Ram, in their application
to the Government for the appointment of an
arbitrator, was that the land jointly belonged to
them and had been acquired for military
purposes, that a certain amount had been paid
to them as compensation, that they received that
amount under protest and that they were
entitled to a larger amount mentioned in the
application and also for the income tax they
would have to pay on account of the
compensation received being added to their
income. Their claim was a joint claim based on
the allegation that the land belonged to them
jointly. The award and the joint decree are on
this basis and the appellate court cannot decide
on the basis of the separate shares.”


The aforesaid observations make it clear that a mere
assertion that surviving party’s own share could be
determined would not save the proceeding from abatement
on non-substitution of the legal representatives of the
deceased co-sharer if the pleadings reflected a joint claim


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 26 of 58



based on an allegation that the subject matter of the suit
belonged to them jointly.

21. In Venigalla Koteswaramma vs. Malampati
20
Suryamba and Others , a suit was instituted, inter alia,
for partition, separate possession of plaintiff’s one-fourth
share and recovery of mesne profits in respect of immovable
properties described in Schedule A and movable properties
described in Schedule B of the plaint. The plaintiff pleaded,
inter alia , that plaintiff and defendants 1 to 3 were siblings,
born from the first wife of the propositus; on death of his first
wife, propositus married another lady on whom suit
properties vested after the death of the propositus; however,
the second wife died intestate and issue less; as a result, the
plaintiff and defendants 1 to 3 became owners of the suit
properties, each having one-fourth share. The said suit was
instituted by impleading several other defendants who had
been intermeddling with the suit properties. In the suit, the
defendants 1 to 3 supported the plaintiff’s case. However, the
other defendants contested the suit by setting up their rights
through the second wife of the propositus either under an

20
Referred to in Footnote 7


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 27 of 58



agreement or a Will, or other instruments. The trial court
discarded the Will and the agreement and decreed the suit
in part while excluding certain properties. Against the trial
court decree, two separate appeals were filed. One by those
who claimed under the agreement; and the other by those
who claimed under the Will. During the pendency of the
appeal, defendant no.2 died, but no application was made for
substitution of his legal representatives. The High Court,
however, proceeded to decide the appeals on merit by
dismissing the appeal of those who claimed under the Will
and allowing the appeal of those who claimed under the
agreement. As a result, the property covered by the
agreement was excluded from partition. Against such
modification of the decree, the plaintiff filed an appeal by
special leave before this Court. In the appeal before this
Court, one of the points urged was that the whole appeal
before the High Court had abated due to non-substitution of
the legal representatives of deceased defendant no.2 and,
therefore, the High Court’s decree is liable to be set aside.
This Court accepted the submission and after surveying
several decisions including five-Judge Bench decision of this
Court in Sardar Amarjit Singh (supra) observed:


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 28 of 58



“45.1. When we apply the principles aforesaid to
the present case, it is not far to seek that the said
appeal by Defendants 16 to 18, after having
abated against Defendant 2 could not have been
proceeded against the surviving respondents i.e.,
the plaintiff and Defendants 1 and 3. This is for
the simple reason that the trial court had
specifically returned the findings that the
agreement Ext. B-10 was not valid and
Defendants 16 to 18 (appellants of AS No.1887
of 1988) derived no rights thereunder. The trial
court has also ordered that Defendants 13, 14
and 16 were liable for mesne profits in respect of
the immovable properties in their possession
belonging to Annapurnamma till they deliver
possession of those items to plaintiff and
defendants 1 to 3. Such findings in relation to
the invalidity of the agreement Ext. B-10 and
consequential decree for partition, for delivery of
possession and for recovery of mesne profits
attained finality qua Defendant 2 Malempati
Radha Krishnamurthy; and his entitlement to
one-fourth share in the suit properties (including
the property covered by Ext. B-10) also became
final when the appeal filed by Defendant 16 to 18
abated qua him. If at all the appeal was
proceeded with and the alleged agreement Ext.
B-10 was upheld (which the High Court has
indeed done), inconsistent decrees were bound
to come in existence and have in fact come in
existence.

45.2. As noticed, the High Court has proceeded
to hold that Ext. B-10 agreement is valid and
binding on the plaintiff and Defendants 1 to 3.
This part of decree is in stark contrast, and is
irreconcilable, with the decree in favour of
Defendant 2 which has attained finality that the
said agreement Ext. B-10 is neither valid nor
binding on Defendant 2. The High Court has
gone a step further to say that the plaintiff and
Defendants 1 to 3 were under obligation to
execute sale deed in favour of defendant 16 to
18. Though making of such an observation in
this suit, that heirs of Annapurnamma were
under obligation to execute a sale deed in favor


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 29 of 58



of defendant 6 to 18, remains seriously
questionable in itself but, in any event, this
observation could not have been made qua the
deceased Defendant 2.
46. When the inconsistencies galore are writ
large on the face of the record, the inescapable
conclusion is that the appeal filed by Defendants
16 to 18 could not have proceeded further after
its abatement against Defendant 2 (Respondent
3).”
(Emphasis supplied)

22. In Sunkara Lakhminarasamma vs. Sagi Subba
21
Raju and Others , three suits were instituted. Suits A and
B were, inter alia , for: (a) partition; (b) setting aside
alienation; and (c) eviction of certain defendants from some
of the properties. Suit C was for specific performance of an
agreement to sell in respect of one of the suit properties. Trial
court dismissed suits A and B, but partly decreed suit C to
the extent of one-third of the property. The first appellate
court affirmed the decree. Three second appeals were filed
before the High Court. Two second appeals arising from suits
A and B were dismissed whereas second appeal arising from
suit C was allowed and the suit for specific performance was
decreed fully in terms prayed for. Before this Court, the
contentions of appellants i.e., plaintiffs in suits A and B were
that Wills relied by defendants were not proved; moreover,

21
(2019) 11 SCC 787


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 30 of 58



those bequests conferred no right, therefore, remaining
defendants, who claimed as transferees from the legatee,
were liable to be evicted. The respondents in the aforesaid
case, refuted those contentions and pleaded that the appeals
were not maintainable since a number of defendants
(purchasers from the legatee), were deleted from the array of
parties, and some of the defendants have died and their legal
representatives were not brought on record; as a result, the
decree passed in favour of such defendants had attained
finality. In other words, the validity of the Wills as well as the
sale deeds stood confirmed qua the deceased/deleted
defendants and, therefore, the appeals, pending against
other defendants, were liable to be dismissed in view of the
fact that if any order is passed adverse to the interest of the
remaining defendants (i.e., respondents in the appeal), it
would be in conflict with the judgment and decree which
stood confirmed as against the deceased/ deleted
defendants. Accepting the aforesaid submissions of the
respondents, a three-Judge Bench of this Court held:
“13. In the matter on hand, the absence of
certain defendants who have been deleted from
the array of parties along with the absence of
legal representatives of a number of deceased
defendants will prevent the court from hearing


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 31 of 58



the appeals as against the other defendants. We
say so because in the event of these appeals
being allowed as against the remaining
defendants, there would be two contradictory
decrees in the same suit in respect of the same
subject-matter. One decree would be in favor of
the defendants who are deleted or dead and
whose legal representatives have not been
brought on record; while the other decree would
be against the defendants who are still on record
in respect of the same subject matter. The
subject matter in the suit is the validity of the
two Wills. The courts including the Division
Bench of the High Court have consistently held
that the two Wills are proved, and thus
Veeraswamy being the beneficiary under the two
Wills had become the absolute owner of the suit
properties in question. Such decree has attained
finality in favor of the defendants who are either
deleted or dead and whose legal representatives
have not been brought on record. In case these
appeals are allowed in respect of the other
defendants, the decree to be passed by this court
in these appeals would definitely conflict with the
decree already passed in favour of the other
defendants.

14. As mentioned supra, the court cannot be
called upon to make two inconsistent decrees
about the same subject matter. In order to avoid
conflicting decrees, the court has no alternative
but to dismiss the appeals in their entirety.

15. In view of the above, the appeals fail not only
on the ground of non-maintainability, but also
on merits, and are dismissed.”
(Emphasis supplied)
22
23. In Budh Ram and Others vs. Bansi and Others
plaintiffs instituted a suit for declaration to the effect that
they and proforma defendant no.6 were co-owners and co-

22
(2010) 11 SCC 476


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 32 of 58



sharers in joint possession to a certain extent of the property
in dispute. They also prayed for permanent prohibitory
injunction to restrain the defendants 1 to 5 from ousting
them. Defendant no.6, namely, Smt Parwatu, did not enter
appearance in the suit. However, defendants 1 to 5, who were
appellants before this Court, contested the suit by claiming
title over the suit land through adverse possession. The trial
court decreed the suit in favour of the plaintiffs and
defendant no.6. Against the trial court decree the defendants
1 to 5 preferred an appeal to the High Court in which
defendant no.6 was arrayed as one of the respondents.
However, during the pendency of appeal, defendant no.6 died
but no substitution was brought within time. Later, when
substitution application was filed, it was dismissed for want
of sufficient cause for the delay. Consequent thereto, the
High Court held that as the trial court had passed a joint
decree, the appeal stood abated in toto. Challenging the
order of the High Court, appeal was laid before this Court.
Affirming the order of the High Court, this Court observed:
“19. In the instant case a declaratory decree was
passed in favor of the respondent plaintiffs and
Smt Parwatu to the effect that they were co-
owners, though, they had specific shares but
were held entitled to be in joint possession. The


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 33 of 58



appellant applicants had sought relief against
Smt Parwatu before the first appellate court as
there was a decree in her favour, passed by the
trial court where Smt Parwatu had been
impleaded by the appellant applicants as pro
forma respondent. In such a fact situation, she
had a right to contest the appeal. Once a decree
had been passed in her favor, a right had vested
in her favor. On her death on 19-11-2000, the
said vested right devolved upon her heirs. Thus,
the appeal against Smt. Parwatu stood abated.
In the instant case, the first appellate court
rejected the application for condonation of delay
as well as the substitution of LRs of Smt
Parwatu, Respondent 4 therein.

20. The only question remains as to whether the
appeal is abated in toto or only in respect of the
share of Smt Parwatu. The High Court has
rightly reached the conclusion that there was a
possibility for the appellate court to reverse the
judgment of the trial court and in such an
eventuality, there could have been two
contradictory decrees, one in favor of Smt
Parwatu and the other, in favor of the present
appellants. The view taken by the High Court is
in consonance with the law laid down by this
court consistently. The facts of the case do not
warrant any further examination of the matter.”
(Emphasis supplied)

24. In Pandit Sri Chand and Others vs. Jagdish
23
Parshad Kishan Chand and Others five persons stood
sureties for satisfaction of the decree under a common surety
bond which recited that the five sureties mortgaged the
properties specified in the schedule thereto and jointly and
severally agreed that if any decree was passed against X they

23
Refer to Footnote 7


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 34 of 58



shall comply with the same and in default the amount
payable under the decree subject to a ceiling shall be realized
from the properties mortgaged. In the suit, decree was
passed which was put to execution. Sureties raised multiple
objections to execution of the decree against them. The
execution court rejected the objection and the appellate court
(i.e., the High Court) confirmed the order of the execution
court. The matter was appealed to this Court by three out of
the five sureties. During the pendency of the appeal here, one
of the appellants died. Application for bringing his LRs on
record being belated was dismissed for want of sufficient
cause for the delay. During hearing of the appeal, the
respondent counsel contended that the appeal had abated in
its entirety as the heirs had not been brought on record and
the ground on which the judgment of the High Court
proceeded was common to all the parties. Accepting the
submission of the respondent counsel, this Court held:
“6. …The order of the High Court holding that
the sureties are liable to satisfy the claim
notwithstanding the objections raised by Basant
Lal has become final. In the appeal filed by the
appellants 1 and 3 if this court holds that the
High Court was in error in deciding that the
surety bond was not enforceable because it was
not registered, or that the first respondent has
done some act which has discharged the sureties


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 35 of 58



from liability under the bond, there would
unquestionably be inconsistent orders -- one
passed by the High Court holding that the surety
bond was enforceable, and the other, the view of
this Court that it is not enforceable.
xxx xxx xxx
9. When the decree in favor of the respondents is
joint and indivisible, the appeal against the
respondents, other than the deceased
respondent cannot be proceeded with if the
appeal against the deceased respondent has
abated.”

25. The underlying principle in the aforesaid decisions is
that in respect of the subject matter of a suit or a proceeding
arising therefrom, the court cannot pass inconsistent
decrees. In consequence, if, due to non-substitution of LRs
of a deceased party, the decree qua the deceased party has
attained finality by abatement of proceedings qua him, the
Court cannot proceed further if a reversal or modification of
the decree under appeal would result in conflicting or
inconsistent decrees. Therefore, in such a situation, the
appeal would abate in its entirety.
ORDER XLI RULE 4 CPC CANNOT PREVENT ABATEMENT
OF AN APPEAL OF THE DECEASED CO-APPELLANT ON
NON-SUBSTITUTION OF HIS LRS

26. Now, we shall consider whether the provisions of
Order XLI Rule 4 of CPC can prevent abatement of an appeal
of the deceased co-appellant on non-substitution of his LRs.


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 36 of 58



27. Order XLI Rule 4 of CPC provides that where there
are more plaintiffs or more defendants than one in a suit,
and the decree appealed from proceeds on any ground
common to all the plaintiffs or to all the defendants, any one
of the plaintiffs or the defendants may appeal from the whole
decree, and thereupon the appellate court may reverse or
vary the decree in favor of all the plaintiffs or defendants, as
the case may be.
28. Interplay between the provisions of Order XXII and
Order XLI Rule 4 of CPC came for consideration before a
three-Judge Bench of this Court in Rameshwar Prasad and
24
Others vs. Shambehari Lal Jagannath and Another . In
that case nine persons including one Kedar Nath instituted
a suit for ejectment and recovery of rent against two
defendants on the allegation that defendant 1 was the
tenant-in-chief who had sub-let the premises to defendant 2.
The suit for ejectment was decreed against both the
defendants, and for arrears of rent against defendant 1. On
appeal by defendant 2, the District Judge set aside the decree
for ejectment against defendant 2 and confirmed the rest of

24
1963 SCC OnLine SC 146 : AIR 1963 SC 1901 : (1964) 3 SCR 549


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 37 of 58



the decree against defendant 1. Against this decree, 9
original plaintiffs filed second appeal in the High Court.
During the pendency of appeal, appellant 3 died. No
application for bringing his legal representatives on the
record was made within the prescribed time. Later, however,
two applications were filed in the High Court. One, for
condonation of the delay in filing the application for
substitution and the other for substitution in which it was
prayed that the sons of Kedar Nath, the deceased, be
substituted in place of the deceased. Those two applications
were rejected with the result that the appeal stood abated as
against Kedar Nath. When the appeal of the appellants, other
than Kedar Nath, came up for hearing, a preliminary
objection was taken for the respondent that the entire appeal
had abated. On behalf of the surviving appellants it was
contended that the deceased belonged to a joint Hindu family
and other members of the family were already on the record
and that it was not necessary to bring on record any other
person. The court allowed parties to file proof of the deceased
being a member of the joint Hindu family. On exchange of
affidavits in that regard, a serious dispute regarding
existence of a joint Hindu family surfaced. Consequently, at


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 38 of 58



the hearing of the appeal, the only point urged on behalf of
the surviving appellants was that they were competent to
continue the appeal in view of Order XLI Rule 4 of CPC. This
contention, however, was rejected by the High Court and the
appeal was declared to have abated. Aggrieved by this, the
appellants appealed to this Court. One of the contentions
raised before this court was that the surviving appellants
could have instituted the appeal against the entire decree in
view of the provisions of Order XLI Rule 4 of the Code; that
they were, therefore, competent to continue the appeal even
after the death of Kedar Nath and that the court could have
reversed or varied the whole decree in favor of all the original
plaintiffs and could have granted relief with respect to the
rights and interests of Kedar Nath as well. Rejecting the
aforesaid contention, this Court, in reference to the
provisions of Oreder XLI Rule 1 of CPC, held:
“These provisions enable one of the plaintiffs or
one of the defendants to file an appeal against
the entire decree. The second appeal filed in the
High Court was not filed by any one or by even
some of the plaintiffs as an appeal against the
whole decree, but was filed by all the plaintiffs
jointly, and, therefore, was not an appeal to
which the provisions of Rule 4 of Order 41 could
apply.
The appeal could not have been taken to be an
appeal filed by some of the plaintiffs against the
whole decree in pursuance of the provisions of


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Rule 4 of Order 41 from the date when the appeal
abated so far as Kedar Nath was concerned. If
the appeal could be treated to have been so filed,
then, it would have been filed beyond the period
prescribed for the appeal. At that time, the
decrees stood against the surviving plaintiffs and
the legal representatives of Kedar Nath. The legal
representatives could not have taken advantage
of Rule 4 of Order 41. It follows that Rule 4 of
Order 41 would not be available to the surviving
plaintiffs at that time.
Further, the principle behind the provisions of
Rule 4 seems to be that any one of the plaintiffs
or defendants, in filing such an appeal,
represents all the other non-appealing plaintiffs
or defendants as he wants the reversal or
modification of the decree in favor of them as
well, in view of the fact that the original decree
proceeded on a ground common to all of them.
Kedar Nath was alive when the appeal was filed
and was actually one of the appellants. The
surviving appellants cannot be said to have filed
the appeal as representing Kedar Nath.
Kedar Nath’s appeal has abated and the decree
in favor of the respondents has become final
against his legal representatives. His legal
representatives cannot eject the defendants from
the premises in suit. It will be against the scheme
of the Code to hold that Rule 4 of Order 41
empowered the Court to pass a decree in favor of
the legal representatives of the deceased on
hearing an appeal by the surviving appellants
even though the decree against him has become
final. This court said in State of Punjab versus
Nathu Ram :
“The abatement of an appeal means
not only that the decree between the
appellant and the deceased respondent
has become final, but also, as a
necessary corollary, that the appellate
court cannot, in any way, modify that
decree directly or indirectly. The
reason is plain. It is that in absence of
the legal representatives of the
deceased respondent, the appellate
court cannot determine anything


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between the appellant and the legal
representatives which may affect the
rights of the legal representatives
under the decree. It is immaterial that
the modification which the court will
do is one to which exception can or
cannot be taken.”
No question of the provisions of Rule 4 of Order
41 overriding the provisions of Rule 9 of Order
22 arises. The two deal with different stages of
the appeal and provide for different
contingencies. Rule 4 of Order 41 applies to the
stage when an appeal is filed and empowers one
of the plaintiffs or defendants to file an appeal
against the entire decree in certain
circumstances. He can take advantage of this
provision, but he may not. Once an appeal has
been filed by all the plaintiffs the provisions of
Order 41, Rule 4 became unavailable. Order 22
operates during the pendency of an appeal and
not at its institution. If some party dies during
the pendency of the appeal, his legal
representatives have to be brought on record
within the period of limitation. If that is not done
the appeal by the deceased appellant abates and
does not proceed any further. There is thus no
inconsistency between the provisions of Rule 9 of
Order 22 and those of Rule 4 of Order 41 CPC.
They operate at different stages and provide for
different contingencies. There is nothing
common in their provisions which make the
provisions of one interfere in any way with those
of the other.
We do not consider it necessary to discuss the
cases referred to at the hearing. Suffice it to say
that the majority of the High Courts have taken
the correct view that the appellate court has no
power to proceed with the appeal and to reverse
and vary the decree in favor of all plaintiffs or
defendants under Order 41, Rule 4 when the
decree proceeds on a ground common to all the
plaintiffs or defendants, if all the plaintiffs or the
defendants appeal from the decree and any of
them dies and the appeal abates so far as he is
concerned under Order 22 Rule 3.”



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29. The decision of this Court in Rameshwar Prasad
(supra) was followed in Pandit Sri Chand (supra) and the
same principle of law has been adopted in a recent two-Judge
Bench decision of this Court in Goli Vijayalakshmi and
Others vs. Yenduj Sathiraju (Dead) through LRs and
25
Others where this Court declined to accept the argument
that despite non-substitution of LRs of a deceased appellant,
the other appellants could prosecute the appeal with the aid
of Order XLI Rule 4 of CPC. The relevant portion of the
judgment is extracted below:
“23. The submission of the learned counsel for
the appellants is that even if the appeals stood
abated qua Appellant 2, the other appellants
would be entitled to prosecute the appeals
relying on the principle of Order 41 Rules 4 and
33 CPC. Suffice it to say that once the appeal
stood abated against Appellant 2 (Defendant 2)
and the decree which stands confirmed qua
Appellant 2 (Defendant 2) cannot indirectly be
reopened to challenge at the behest of persons
claiming through him by relying on provisions of
Order 41 Rules 4 and 33 CPC as prayed for.”

26
30. In Mahabir Prasad vs. Jage Ram and Others ,
this Court explained Rameshwar Prasad (supra) in the light
of an earlier decision of this Court in Ratan Lal Shah vs.
27
Firm Lalmandas Chhadammalal and thereby limited its

25
(2019) 11 SCC 352
26
(1971) 1 SCC 265
27
(1969) 2 SCC 70


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applicability to a situation where the deceased party was a
co-appellant and not the one impleaded as a proforma-
respondent. In Mahabir Prasad (supra) this Court held that
if a decree is made on common ground against the plaintiffs
or the defendants and the appeal against the same is filed by
any one or some of the plaintiffs, or defendants, as the case
may be, by impleading the remaining of those plaintiff(s) or
defendant(s) as proforma-respondent(s), on non-substitution
of LRs of such proforma respondent(s) the appeal would not
abate as the appellants would be entitled to prosecute the
appeal with the aid of Order XLI Rule 4 of CPC. The relevant
portion of the judgment is extracted below:
“5. In support of their view the High Court relied
upon the judgment of this court in Rameshwar
Prasad v. Shyam Beharilal Jagannath . That was a
case in which nine persons instituted a suit for a
decree in ejectment and for recovery of rent against
two defendants and obtained a decree. In appeal
the District Judge set aside the decree, against one
of the defendants. The plaintiffs filed a second
appeal in the High Court and when the appeal was
pending one of the plaintiffs (appellants in the High
Court) died. No application for bringing his legal
representatives on the record was made within the
prescribed time. The respondents objected that the
entire appeal had abated because the interest of the
surviving appellants and of the deceased appellant
was joint and indivisible and that in the event of
the success of the appeal there would be two
inconsistent and contradictory decrees. The
surviving appellants claimed that the appeal was
maintainable on the ground that without


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impleading the plaintiff who had died they could
have appealed against the entire decree in view of
the provisions of Order 41, Rule 4 of the Code of
Civil Procedure and on that account they were
competent to continue the appeal, even after the
death of one of the joint decree holders and
abatement of the appeal so far as he was
concerned, and the court had the power to hear the
appeal and to reverse or vary the whole decree. This
court held that the provisions of Order 41, Rule 4
of the Code of Civil Procedure were not applicable
for the second appeal in the High Court was filed
by all the plaintiffs jointly, and the surviving
appellants could not be said to have filed the appeal
as representing the deceased appellant. The Court
further held that the appellate court had no power
to proceed to hear the appeal and to reverse or vary
decree in favor of all the plaintiffs or defendants
under Order 41, Rule 4 of the Code of Civil
Procedure, when the decree proceeded on the
ground common to all the plaintiffs, or defendants,
if all the plaintiffs or the defendants appealed from
the decree and any of them died, and the appeal
abated in so far as he was concerned under Order
22, Rule 3 of the Code of Civil Procedure.
Rameshwar Prasad case is obviously
distinguishable from the present case. In
Rameshwar Prasad case all the plaintiffs whose
suit had been dismissed had filed an appeal and
thereafter one of them died and his heirs were not
brought on the record. In the present case there is
an order against the decree holders but all the
decree holders did not appeal; only one of them
appealed and the other two were joined as party
respondents.
6. In a later judgment of this court in Ratan Lal
Shah v. Firm Lalmandas Chhadammalal the
plaintiffs obtained joint decree against two persons
– Ratan Lal and Mohan Singh. Against the decree
Ratan Lal alone appealed to the High Court of
Allahabad. Mohan Singh was impleaded as a party
respondent to the appeal. Notice of appeals sent to
Mohan Singh was returned unserved, and no steps
were taken to serve him with notice of the appeal.
The High Court dismissed the appeal holding that
there was a joint decree against Ratan Lal and


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Mohan Singh in a suit founded on a joint cause of
action and the decree against Mohan Singh had
become final. The appellant could not, on that
account claimed to be heard in his appeal; if he was
heard and his claim was upheld, the High Court
observed that there would be two conflicting
decisions between the same parties and in the
same suit based on the same cause of action. This
court set aside the judgment of the High Court
observing that even though Mohan Singh was not
served with notice of appeal, the appeal filed by
Ratan Lal was maintainable, in view of the
provisions of Order 41 Rule 4 of the Code of Civil
Procedure. In Ratan Lal Shah case this court
allowed the appeal to be prosecuted, even though
one of the joint decree-holders impleaded as a party
respondent had not been served with the notice of
appeal. In the present case one of the respondents
had died and his heirs have not been brought on
the record. No distinction in principle may be made
between Ratan Lal Shah case and the present case.
Competence of the appellate authority to pass a
decree appropriate to the nature of the dispute in
an appeal filed by one of several persons against
whom a decree is made on a ground which is
common to him and others is not lost clearly
because of the person who was jointly interested in
the claim has been made a party respondent and
on his death his heirs have not been brought on the
record. Power of the appellate court under Order
41, Rule 4, to vary or modify the decree of a
subordinate court arises when one of the persons
out of many against whom a decree or order has
been made on a ground which was common to him
and others has appealed. That power may be
exercised when other persons who were parties to
the proceeding before the subordinate court and
against whom a decree proceeded on a ground
which was common to the appellant and to those
other persons are either not impleaded as parties
to the appeal or are impleaded as respondents. The
view taken by the High Court cannot therefore be
sustained.”
(Emphasis supplied)



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31. Upon consideration of the decisions on the interplay
between the provisions of Order XLI Rule 4 and Order XXII
of CPC qua abatement of an appeal, the law that emerges is
summarized below:
i. Rule 4 of Order XLI applies to the stage when an
appeal is filed and empowers one of the plaintiffs or
defendants to file an appeal against the entire decree in
certain circumstances. A plaintiff or defendant can take
advantage of this provision, but he may not. Therefore,
once an appeal is filed by all the plaintiffs or defendants
aggrieved by the decree, the provisions of Order XLI,
Rule 4 become unavailable.
ii. Rule 4 of Order XLI is to enable one of the parties to
a suit to obtain relief in appeal when the decree appealed
from proceeds on a ground common to him and others.
The court in such an appeal may reverse or vary the
decree in favour of all the parties who are having the
same interest as the appellant, even though they have
not appealed against the decree. This is so, because it
is not the law that when a decree is passed on a ground
common to all the parties, the appeal is to be filed by all
the parties or not at all.


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iii. Order XXII applies without exception to all
proceedings covered by it. It operates during the
pendency of a proceeding including an appeal and not
at its institution. Therefore, if an appellant dies during
the pendency of the appeal, his legal representatives
must be brought on record within the period of
limitation. If that is not done, the appeal by the deceased
appellant abates.
iv. Where an appeal is filed by any one or some of the
plaintiffs, or defendants, aggrieved by the decree, by
impleading other such plaintiff(s) or defendant(s) as
proforma-respondent(s), in the event of death of such
proforma-respondent, the benefit of the provisions of
Order XLI Rule 4 would be available to continue the
appeal regardless of substitution of LRs of such
proforma-respondent.
v. There is no inconsistency between the provisions of
Order XXII and those of Rule 4 of Order XLI CPC. They
operate at different stages and provide for different
contingencies. There is nothing common in their
provisions which make the provisions of one interfere in
any way with those of the other.


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DECISIONS CITED ON BEHALF OF THE APPELLANTS

32. Now we shall consider the decisions cited by the
learned counsel for the appellants. The decisions cited by
the learned counsel for the appellant are referred to in
footnote 6, which shall be dealt with serially below:

(a) Delhi Development Authority vs. Diwan Chand
28
Anand and Others : In this case two out of six
persons, in whose favour the deeds of conveyance were
executed, instituted a suit against the state-respondents
including DDA by impleading the remaining co-owners
as defendants. The suit was decreed by trial court
against which DDA filed appeal impleading plaintiffs as
well as other defendants, who were alleged co-owners,
as respondents. One of the plaintiff-respondent and
some of the defendant-respondent who were co-owners
died during the pendency of the appeal. On ground of
non-substitution of all the heirs of deceased plaintiff-
respondent and the legal representatives of the deceased
defendant-respondent(s) who were also one of the co-
owners, the appellate court declared the appeal to have

28
See Footnote 6


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abated. When the matter travelled to this court, it was,
inter alia , argued on behalf of the appellant that the suit
was instituted by some of the co-owners for self and on
behalf of the other co-owners, as is permissible in law,
and since some of the heirs of the deceased plaintiff-
respondent were already on record, the appeal would not
abate on non-substitution of the legal representatives of
deceased defendant-respondent as their estate stood
duly represented by the other co-sharer, namely, the
plaintiff-respondent. In that context, this Court while
setting aside the decision of the High Court observed:
“34. As observed and held by this court in A.
29
Vishwanatha Pillai , the co-owner is as much an
owner of the entire property as a sole owner of the
property. No co-owner has a definite right, title and
interest in any particular item or a portion thereof.
On the other hand, he has the right, title and
interest in every part and parcel of the joint
property. He owns several parts of the composite
property along with others and it cannot be said
that he is only a part owner or a fractional owner
in the property. It is observed that, therefore, one
co-owner can file a suit and recover the property
against strangers and the decree would enure to all
the co-owners. The aforesaid principle of law would
be applicable in the appeal also. Thus, in the
instant case, when the original plaintiffs -- two co-
owners instituted the suit with respect to the entire
suit land jointly owned by the plaintiffs as well as
defendants 9 to 39 and when some of the
respondent-defendants in appeal died, it can be
said that estate is represented by others, more

29
A. Vishwanatha Pillai v. LAO, (1991) 4 SCC17


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particularly the plaintiffs/heirs of the plaintiffs and
it cannot be said that on not bringing the legal
representatives some of the co-sharers,
respondent- defendants in appeal, the appeal
would abate as a whole.”
(Emphasis supplied)


In our view, this decision would not be of much help
to the appellants herein because here there was no suit
by co-sharer(s) for self as well as for other non-suing co-
sharer. Even the appeal was jointly filed by both the
defendants against the decree and not by one of them
with the aid of Order XLI Rule 4 CPC. Therefore, the
surviving co-sharer was not representing the estate of
the deceased co-sharer.
(b) Sakharam (since deceased) Through LRs &
30
Another vs. Kishanrao : In this case one of the two
plaintiff-respondents in a second appeal died and the
High Court dismissed the appeal as having abated on
non-substitution of his LRs. In that context, this Court
while allowing the appeal observed:
“6. When two plaintiffs joined together and secured
a decree of declaration and possession of an
immovable property, the death of one of the decree
holders will not make the second appeal abate. As
against the surviving successful plaintiff, the cause
of action survived. Abatement occurs only when the

30
See Footnote 6


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cause of action does not survive upon or against
the surviving party.”

In our view, the aforesaid decision, which is by a
two-Judge Bench, cannot be taken as a binding
precedent since it does not at all deal with the possibility
of conflicting or inconsistent decrees arising from
abatement of appeal qua the deceased plaintiff-
respondent. In fact, the judgment does not at all deal
with earlier binding precedents of larger Benches
including the one rendered by a five-Judge Bench which
we have discussed in the earlier part of this judgment.
We, therefore, hold the same to be per incuriam .
(c) Gurnam Singh (Dead) through LRs and Others vs.
31
Gurbachan Kaur (Dead) by LRs . : In this case, it was
held by this Court that where parties to an appeal had
expired and the legal representatives of the deceased
parties were not brought on record the proceedings
would abate and the decree passed in ignorance thereof
would be a nullity. In our view, this judgment is of no
help to the appellant.

31
See Footnote 6


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32
(d) State of Punjab vs. Shamlal Murari : This
decision does not deal with the issue of abatement. We,
therefore, find it not relevant for discussion.
(e) Baij Nath & Another vs . Ram Bharose and
33
Others : In this case a Full Bench of the Allahabad
High Court held:
“36. …
1. If, in a suit, a plaintiff, makes a claim
against a number of defendants on common
grounds and all the defendants also contest the
suit on common grounds and the suit is decided
in favor of the plaintiff against all the defendants,
an appeal filed by all the defendants can be
heard in favor of the remaining defendants after
one of the appealing defendants has died during
the pendency of the appeal and his legal
representatives have not been brought on record
so that his appeal has abated, only if the rights
and interests of the surviving defendants were
not joint and indivisible with those of the
deceased defendant, and in the event of the
success of the appeal, it does not lead to two
inconsistent and contradictory decrees.
2. While the appeal of the remaining
defendants can be heard, the decision in it will
not enure to the benefit of the legal
representatives of the deceased defendant
appellant.”
(Emphasis supplied)

In our view, the above decision of the Allahabad High
Court makes it clear that the appeal filed can be heard
in favour of the remaining defendant-appellants only if

32
See Footnote 6
33
See Footnote 6


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 52 of 58



the rights and interests of the surviving defendants were
not joint and indivisible with those of the deceased
defendant, and in the event of the success of the appeal,
it does not lead to two inconsistent and contradictory
decrees which is also the law laid down by five-Judge
Bench of this Court in Sardar Amarjit Singh Kalra
(supra) .
CONTINUANCE OF APPEAL MAY RESULT IN
INCONSISTENT OR CONTRADICTORY DECREES

33. In the instant case, the civil suit was instituted by
the first respondent (i.e., Parasram), inter alia , for declaration
of title and possession of suit property by claiming that his
grandfather (i.e., Tej Singh) was the sole owner of the suit
property which he got constructed from his own funds and
was recorded as such in the municipal records since 1938;
that on his death in 1965, plaintiff’s father’s (i.e.,
Ramswarup) name was mutated in municipal records on
1.3.1967 and he became owner in possession; in between,
defendants presented application for mutation which was
rejected with liberty to them to bring a suit before competent
court, which they did not; that tenants have been residing in
the suit property since 1937 and they used to pay rent to the


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 53 of 58



plaintiff’s grandfather and on his death to the plaintiff’s
father; that on 9.10.1979, partition was carried out,
according to which, suit property came to the share of the
plaintiff and plaintiff’s name was recorded in municipal
records vide resolution dated 31.1.1981; that defendants
had been residing in the third floor of the disputed building
as tenants of previous owner on a monthly rent of Rs.50/-
p.m. and since 9.10.1979 they are tenants of the plaintiff;
that defendants encroached upon the vacant portion of the
ground floor of the disputed building and opened a Hotel for
their son, in respect of which plaintiff served notice on
12.12.82, but despite service of notice, possession has not
been handed over; that, in fact, defendants sublet certain
portion of ground floor to Raghuveer without the permission
of the plaintiff, for this reason also, plaintiff is entitled to
possession of the building from the defendants; that
defendants denied ownership of the plaintiff and on this
ground also plaintiff is entitled to possession. Thus, by
claiming termination of tenancy, suit was instituted.
34. Defendants Suresh Chandra and Ram Babu filed
written statement, , claiming that disputed building
inter alia
has never been in the ownership of Tej Singh, if his name


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 54 of 58



was mutated in the revenue record it was by playing fraud.
Similarly, if father of the plaintiff got his name mutated it
was by fraud, which confers no right or title. Defendants
claimed title and possession over the suit property extending
for last 38 years as owners thereof. They denied tenancy and
claimed that father of the defendants, namely, Gokul Prasad,
received the property in mutual partition held with his
brothers, namely, Tej Singh, Jwala Prasad, Gajadhar Prasad
in the year 1947 and after the death of Gokul Prasad in the
year 1950, defendants became complete owners in
possession over disputed buildings. With the aforesaid
averments, they prayed for dismissal of the suit.
35. The trial court dismissed the suit, inter alia , holding
that plaintiffs failed to prove that they were the exclusive
owner of the suit property and they also failed to establish
that defendants were tenants thereof.
36. Aggrieved with the judgment and decree of the trial
court, the first respondent filed civil appeal. The first
appellate court allowed the appeal and decreed the plaintiff’s
suit, inter alia , holding that plaintiff is the owner of the suit
property; defendants’ father Gokul Prasad did not get the
property in partition, therefore defendants who claim


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 55 of 58



through Gokul Prasad are not the owners, rather are
tenants.
37. The aforesaid facts make it clear that the defendants
claimed a joint interest in the suit property flowing from their
father Gokul Prasad whereas the plaintiff claimed title
through his own father with an additional claim that the
defendants were his tenants through his predecessors-in-
interest. The first appellate court accepted plaintiff’s case
and held the plaintiff to be owner of the suit property and
defendants to be its tenants. In such circumstances, if, on
non-substitution of the legal representatives of one of the
defendant-appellants, the second appeal abated qua him, the
decree as against him, holding him to be tenant and plaintiff
the owner, attained finality. Therefore, if the second appeal
is allowed to proceed, on it being allowed, possibility of
conflicting and contradictory decrees, in respect of same
subject matter, coming into existence cannot be ruled out
because one, which attained finality, held the plaintiff to be
owner of the suit property and the deceased defendant its
tenant whereas the other could hold the surviving defendant
to be its owner. What is important is that both defendants
had set up a common defense of having a joint title over the


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 56 of 58



suit property flowing through their father, who, admittedly,
was not found owner by the first appellate court. In such
circumstances, the decree that came into existence was an
indivisible/inseparable decree and if the second appeal had
been allowed to proceed there was possibility of conflicting
decrees coming into existence, hence, abatement of the
second appeal qua the deceased defendant-appellant would
result in abatement of the entire second appeal. Issue (b) is
decided in the above terms.
CONCLUSIONS:
38. In the light of discussion above, we summarize our
conclusions as under:
(a) The finding returned by the High Court that there
was no sufficient cause for condonation of delay in filing
application for substitution and setting aside abatement
does not suffer from any illegality or perversity as to
warrant an interference.
(b) On abatement of second appeal qua the second
appellant Ram Babu, the entire second appeal abated as
continuance of the second appeal would have given rise
to a possibility of inconsistent decrees i.e., one in favour
of the plaintiff against the deceased defendant-appellant


Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 57 of 58



and the other in favour of the surviving defendant
appellant, even though both defendants claimed joint
interest in the suit property flowing from their father.
(c) As the second appeal was jointly filed by the two
defendants, the benefit of the provisions of Order XLI
Rule 4 CPC was not available to the surviving defendant
appellant to continue with the second appeal and seek
for reversal or modification of the decree operating
against the deceased-appellant as well.
39. In view of our conclusions above, we find no merit in
these appeals. The same are accordingly dismissed. Pending
application(s), if any, stand disposed of. Parties to bear their
own costs.



……..…............................................. J.
(PAMIDIGHANTAM SRI NARASIMHA)




…….................................................. J.
(MANOJ MISRA)

NEW DELHI;
JULY 18, 2025


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