Full Judgment Text
2026 INSC 48
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 172 OF 2026
(@ SLP (C) No(s). 36787 of 2017)
KISHORILAL (D) THR. LRS & ORS. …APPELLANT (S)
VERSUS
GOPAL & ORS. …RESPONDENT (S)
WITH
CIVIL APPEAL NO. 173 OF 2026
(@ SLP (C) No(s). 397 of 2018)
J U D G M E N T
MANOJ MISRA, J.
SLP (C) No. 36787 of 2017
1. Leave granted.
Facts giving rise to appeal (i.e., SLP (C) No.36787
of 2017)
2. This appeal arises from Original Suit No. 5A
Signature Not Verified
Digitally signed by
CHETAN ARORA
Date: 2026.01.12
16:06:05 IST
Reason:
of 1992 which was instituted by Gopal (first
Civil Appeal @ SLP (C) No.36787/2017 Page 1 of 43
respondent) against Kishorilal (i.e., first appellant
(since deceased), who is now represented through his
1
LRs ), inter alia , for declaration and injunction and,
later, by way of amendment, for specific performance
of agreement to purchase the suit scheduled
property. During pendency of the suit, Brajmohan
and Manoj (i.e., the appellants in the connected
appeal), purchased the suit property from Kishorilal,
vide sale-deed dated 20.04.1992.
3. The aforesaid suit was decreed on
18.10.2000. Aggrieved therewith, Kishorilal and the
transferees lis pendens , namely, Brajmohan and
Manoj, jointly filed appeal (i.e., F. A. No. 213 of 2000)
before the High Court of Madhya Pradesh, Bench at
2
Gwalior . During pendency of the appeal, Kishorilal
died on 17.12.2005. Therefore, vide order dated
10.07.2006, his LRs, namely, (i) Suresh, (ii)
Murarilal, (iii) Prakash and (iv) Sitabai were
1
Legal Representatives
2
High Court
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substituted as appellants No. 1(1), 1(2), 1(3) and 1(4),
respectively.
4. On 22.07.2007 Murarilal i.e., appellant No.
1(2) died. On his death, the remaining appellants
filed an application (i.e., IA No.17118 of 2010) on
19.10.2010 for deletion of Murarilal from the array of
parties on the ground that interest of Kishorilal in the
suit property is already represented by Brajmohan
and Manoj (i.e., appellants No. 2 and 3 who had
purchased the suit property) and other LRs of
Kishorilal. The said application was allowed by order
dated 09.05.2011, which reads as under:
“Heard on I.A. No. 17118/2010, which is an
application under Order XXII Rule 2, 4(4)
and under Section 11 of CPC (which should
be read Rule 11) for deleting the name of
appellant no.1 who has died and sold the
suit property to appellant no.2 and 3 who
are his legal representatives.
Considering the averments made in this
application, the same is allowed at the risk
and cost of the appellants. The name of
appellant no. 1 be deleted from the array of
cause title within one week.”
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[Note: There appears typographical mistake
in the above extracted order as the prayer in
IA No.17118/2010 was not to delete
Kishorilal (appellant no.1) from array of
parties but to delete one of his LRs, namely,
Murarilal i.e., appellant 1(2), as the estate of
Kishorilal was represented by appellants 2
and 3 and other LRs of Kishorilal.]
5. On deletion of Murarilal’s name from the
array of parties in the appeal, and non-substitution
of his LRs, an application (IA No.2667/ 2011) was
filed by the plaintiff-respondent (i.e., Gopal) to
dismiss the appeal as having abated. This application
was dismissed by the High Court vide order dated
04.03.2013, which is reproduced below:
“Heard on I.A. No. 2667/2011, which is an
application filed on behalf of respondents for
treating the appeal as abated as the legal
representatives of appellant Kishorilal have
not been brought on record.
Learned Counsel for the appellants
submitted that appellants no.2 and 3 have
already been brought on record as Legal
Representatives of appellant Kishorilal vide
order dated 09.05.2011 on the ground that
the disputed property has been sold by
Kishorilal to appellants no.2 and 3
therefore, appellants no.2 and 3, who are
purchasers lis pendens , are legal
representatives of appellant Kishorilal as the
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property has been purchased by them and
legal heirs of appellant Kishorilal have no
right, title or interest in the disputed
property.
Since the Legal Representatives of appellant
Kishorilal who are having the right, title and
interest over the disputed property are
already on record being appellants no.2 and
3, therefore, it cannot be said that the
appeal has abated.
Appellants may implead other legal heirs of
appellant Kishorilal as Legal
Representatives if they are necessary party
in the appeal.
List the case for final hearing in due course.”
After the aforesaid order was passed, on 14.03.2013
an application (IA No.1438/ 2013) was filed, under
Order 22 Rules 4 and 11 read with Order 1 Rule 10 of
3
the Code of Civil Procedure, 1908 , to implead heirs of
Murarilal as respondents. On this application, an
objection was filed by the plaintiff-respondent.
However, the application was allowed vide order dated
03.05.2013, which is reproduced below:
“Heard on I.A. No. 1438/2013 which is an
application under Order XXII Rule 4 and 11
C.P.C. and under Order I Rule 10 C.P.C. for
3
CPC
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deleting the name of original appellant no.1
as he has sold the property to appellant
no.2 and 3 and to bring the Legal
Representatives of appellant no. 1(2) on
record. Other Legal Representatives of
appellant no.1 are on record, therefore,
there is no abatement of appeal.
Let the necessary amendment be carried out
within 7 days from today.
List the case for final hearing in Second
Week of July, 2013.”
[Note: There appears some typographical
error in this order as I.A. No.1438/2013 did
not seek deletion of appellant no.1 rather it
sought impleading the heirs of Murarilal as
proforma respondents]
6. Thereafter, on 15.07.2017 an application was
filed by the appellants for setting aside abatement of
the appeal, if any, and for condoning the delay, if
any, in the interest of justice. To this application, on
20.07.2017 an objection was filed by the plaintiff-
respondent. While the aforesaid application was
pending, an application was filed for recall of the
order dated 09.05.2011 by which Kishorilal’s name
was erroneously deleted from the array of parties. To
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this application also, on 27.07.2017 an objection was
filed by the plaintiff-respondent.
7. By the impugned order dated 12.09.2017, the
High Court rejected the application of the appellants
to recall the order dated 09.05.2011 and held that on
deletion of Murarilal’s name from the array of parties,
the appeal had abated and, therefore, the appeal is
liable to be dismissed as having abated.
8. Aggrieved by the order of the High Court
dismissing the appeal as having abated, present
appeal, by special leave, has been filed.
SLP (C) No. 397 of 2018
9. Leave granted.
Facts giving rise to connected appeal (i.e., SLP (C)
No.397 of 2018
10. The connected appeal arises from Original
Suit No. 10A of 1995. This suit was instituted by
Brajmohan and Manoj (i.e., transferees of Kishorilal)
for eviction of Gopal (i.e., plaintiff-respondent in the
other appeal) from the suit scheduled property, inter
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alia , on the ground that the plaintiffs had purchased
the suit property through sale deed executed by
Kishorilal and the suit property is required for their
use.
11. The Trial Court dismissed the suit vide
judgment and order dated 18.10.2000. Against
which, F. A. No. 217 of 2000 was filed before the
High Court. As the High Court had dismissed First
Appeal No. 213 of 2000 as abated, the decree of
specific performance in favour of Gopal attained
finality, rendering the sale-deed in favour of
Brajmohan and Manoj void, F.A. No.217 of 2000 was
dismissed by the High Court vide separate order
dated 12.09.2017.
12. Aggrieved by dismissal of F.A. No.217 of
2000, the present appeal has been filed, by special
leave to appeal (i.e., SLP (C) No. 397 of 2018).
13. Since the decision of the High Court in F. A.
No. 217 of 2000 is a consequence of dismissal of F.A.
No. 213 of 2000 as abated, these two appeals were
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heard together and are being decided by a common
judgment and order.
14. We have heard Sri Puneet Jain, Sr. Adv., for
the appellant; and Sri Yatindra Singh, Sr. Adv., for
the respondents.
SUBMISSIONS ON BEHALF OF APPELLANTS
15. Learned counsel for the appellants submitted:
(i) Kishorilal (i.e. judgment-debtor in O.S. No.
5A of 1992) had already transferred his
interest in the suit scheduled property (i.e.,
subject matter of the agreement), therefore,
his interest was fully represented by the
purchasers i.e., transferees lis pendens ,
namely, Brajmohan and Manoj, who were on
record as appellants No. 2 and 3 in F.A. No.
213 of 2000; hence, on death of Kishorilal,
the appeal would not abate as the right to
pursue the appeal survived on the surviving
appellant(s).
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(ii) A transfer hit by Section 52 of the
Transfer of Property Act, 1882 (i.e. the
doctrine of lis pendens ) is not void though
subservient to the rights of the parties under
the decree or order which may be made in the
suit or the proceeding. In such
circumstances, Brajmohan and Manoj were
entitled to represent the estate of Kishorilal
not only as transferee but also as an inter-
meddler of the estate of Kishorilal.
(iii) Besides that, on death of Kishorilal, his
four legal heirs, namely, Suresh, Murarilal,
Prakash and Sitabai, were brought on record.
Even if one of them died, the estate of
Kishorilal was substantially represented
through Suresh, Prakash and Sitabai. Hence,
there was no question of abatement of the
appeal for non-substitution of the legal
representatives of Murarilal.
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(iv) If Kishorilal’s name was erroneously
deleted after his death, it could be restored by
recall/ correction. Moreover, his heirs and
legal representatives were already on record,
therefore, there was no question of abatement
of the appeal.
(v) The High Court order dated
vide
04.03.2013 had already negatived the plea of
abatement of appeal by observing that other
LRs of Kishorilal were on record besides
appellants No. 2 and 3 therefore, on non-
substitution of one of the heirs of Kishorilal,
High Court could not have declared appeal to
have abated. Moreover, such declaration was
barred by the principle of res judicata.
(vi) Otherwise also, High Court order
vide
dated 04.03.2013 had given liberty to implead
other legal representatives of Murarilal, in
case necessary, therefore, impleadment
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application was allowed vide order dated
03.05.2013. In such circumstances, when all
LRs of late Kishorilal were on record, there
was no justification to dismiss the appeal as
having abated.
SUBMISSIONS ON BEHALF OF RESPONDENT(S)
16. , learned counsel for the
Per contra
respondents submitted:
(i) A suit for specific performance is for
enforcement of contractual obligations. In
such a suit, the decree must require the
vendor and subsequent purchaser, if any, to
execute the sale-deed in favour of decree-
holder in terms of the agreement. This legal
position is settled by this Court in Lala
Durga Prasad and Others v. Lala Deep
4
Chand and Others , followed in R.C.
Chandiok and Anr. v. Chuni Lal
4
(1953) 2 SCC 509
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5
Sabharwal and Ors. . Therefore, if all legal
heirs of Kishorilal (i.e., vendor) including heirs
of his legal heir (i.e., Murarilal) are not
brought on record, within the limitation
period, the decree of specific performance
would attain finality qua one of the heirs of
Kishorilal. And since decree of specific
performance is inseparable, continuance of
appeal might result in inconsistent decrees,
therefore, the appeal would abate as a whole
on non-substitution of one of the heirs of
Kishori Lal, namely, Murarilal.
(ii) In a suit for specific performance, the
vendor is a necessary party. Therefore, even if
the subsequent purchaser is on record, the
vendor would have to be on the record for a
valid decree. In such circumstances, the
benefit of Order 41 Rule 4 of CPC is not
available as was held by this Court in
5
(1970) 3 SCC 140
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Dwarka Prasad Singh and Others v.
6
Harikant Prasad Singh and Others .
(iii) Abatement is by operation of law.
Therefore, even in absence of a formal order,
the appeal or proceeding would abate for non-
substitution within the period of limitation.
(iv) Once abatement takes place, it can be set
aside by substitution after condoning the
delay and not by way of impleadment.
Therefore, if time for substitution has lapsed
and the appeal has abated, in absence of an
order condoning the delay in seeking
substitution and setting aside abatement, by
mere impleadment of LRs of a deceased party,
abatement cannot be deemed set aside.
Hence, the order dated 03.05.2013 is of no
consequence more so because Murarilal died
6
(1973) 1 SCC 179
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on 22.07.2007 and by the time impleadment
was allowed, the appeal had already abated.
(v) The application to set aside abatement was
filed on 24.07.2017 i.e. about 10 years after
Murarilal’s death. Therefore, it was justifiably
rejected by the High Court.
(vi) The order dated 09.05.2011 permitting
deletion of Kishorilal was at the risk of
appellants No. 2 and 3 and, therefore, the
said order cannot obviate subsequent
adjudication regarding abatement of appeal
on ground of res judicata .
Based on the aforesaid submissions, on behalf of
respondents, it was submitted that both appeals are
devoid of merit and should be dismissed.
17. We have considered the rival submissions and
have carefully perused the materials on record.
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ISSUES
18. Upon considering the rival submissions, in
our view, following issues arise for our consideration:
(i) Whether F. A. No. 213 of 2000 abated on
non-substitution of LRs of Murarilal i.e.,
appellant 1(2), who was one of the LRs of
deceased-judgment debtor Kishorilal?
(ii) Whether the order of the High Court, dated
03.05.2013, holding that appellants No. 2 and
3 along with other heirs of Kishorilal
sufficiently represented the interest of
Kishorilal in the appeal, would, by the
principle of res judicata , bar a declaration
that the appeal had abated?
(iii) Whether by allowing impleadment of the
heirs and legal representatives of Murarilal as
proforma respondents in F. A. No. 213 of
2000, vide order dated 03.05.2013, the High
Court, in effect set aside abatement, if any?
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(iv) Whether, in the peculiar facts of the case,
the High Court ought to have condoned the
delay and set aside the abatement, if any, of
F.A. No.213 of 2000?
ANALYSIS
Summary of undisputed facts
19. Before addressing the issues, a brief resume
of undisputed facts of the case would be apposite.
Suit No. 5A of 1992 was instituted by Gopal (plaintiff-
respondent) against Kishorilal for declaration and
injunction and, later, by way of amendment, for
specific performance of a purchase agreement
between Kishorilal and Gopal concerning the suit
property, which was sold by Kishorilal, during
pendency of the suit, to Brajmohan and Manoj (i.e.,
the appellants), vide sale-deed dated 20.04.1992. In
consequence, the appellants were also impleaded as
defendants.
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20. The suit was decreed by the trial court.
Against which, F. A. No. 213 of 2000 was jointly filed
by Kishorilal (i.e., appellant no.1), Brajmohan
(appellant no.2) and Manoj (appellant no.3) before the
High Court. During pendency of the appeal,
Kishorilal died on 17.12.2005. His legal heirs
including Murarilal were substituted order dated
vide
10.07.2006. Thereafter, Murarilal died in the year
2007. An application was submitted for deleting him
from the array of parties on the ground that interest
of Kishorilal was sufficiently represented by his other
LRs including appellants No. 2 and 3 (i.e., lis
pendens transferees). On this application, an order
was passed on 09.05.2011 deleting appellant no.1
(Kishorilal) from the array of parties, when the prayer
was to delete Murarilal. It is necessary to note that
on the date when order dated 09.05.2011 was passed
Kishorilal was already dead and stood substituted by
his four legal heirs including Murarilal. Thus, it is
clear that the direction to delete Kishorilal from the
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array of parties was nothing but a typographical
mistake which ought to be read/considered as a
direction to delete Murarilal as is clear from
subsequent orders passed in the course of the
appeal.
21. In the aforesaid context, when plaintiff-
respondent filed an application for abatement on
non-substitution of LRs of Murarilal, the High Court
passed an order on 04.03.2013 holding that since
LRs of Kishorilal, namely, appellants No. 2 and 3,
who had purchased the property, and other legal
heirs were there on record, the appeal cannot be said
to have abated. However, the High Court gave liberty
to implead other heirs of Kishorilal. Pursuant thereto,
application was filed to bring on record heirs of
Murarilal as proforma respondents. On this
application, vide order dated 03.05.2013, the High
Court allowed impleadment of Murarilal’s heirs as
proforma respondents.
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22. Later, when, during hearing of the appeal,
issue was raised by the decree holder that appeal has
already abated consequent to non-substitution of the
heirs of Murarilal, formal application was filed for
setting aside abatement along with prayer to condone
the delay. This application was rejected and the
appeal (i.e., F.A. No.213 of 2000) was dismissed as
having abated vide impugned order dated
12.09.2017.
23. In view of dismissal of F.A. No.213 of 2000,
the decree of specific performance in favour of
defendant in Suit No.10A of 1995 became operative,
therefore, F.A. No.217 of 2000, arising from dismissal
of Suit No.10A of 1995, was dismissed vide second
impugned order dated 12.09.2017.
24. On summation of facts what becomes clear is
that out of four heirs of Kishorilal, three remained on
record. The fourth, namely, Murarilal, died and was
not substituted within time. Though, later, his heirs
and legal representatives were also brought on record
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as proforma respondents in the appeal. In that
context, we shall address the issues.
Issues (i) and (ii)
25. Issues (i) and (ii) are inter-related, therefore
we shall address them together.
26. As we have noticed above that on death of
Kishorilal (i.e., appellant No.1) all his four heirs were
brought on record of F.A. No.213 of 2000 and, later,
on death of one of his heirs i.e., Murarilal, his LRs
were also brought on record, though beyond the
period prescribed by the law of limitation. It is thus
not a case where deceased Kishorilal (i.e., the vendor)
was totally unrepresented. Rather, he was
represented, initially, through his four legal heirs
and, later, on death of one of them, namely,
Murarilal, by three of them and the purchaser of his
interest in the property (i.e., the appellants No. 2 and
3). Later, even legal heirs of Murarilal were brought
on record as proforma-respondents through an order
of impleadment.
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27. The thrust of the submissions of the learned
counsel for the respondent(s) is on there being no
application of mind on the part of the High Court in
allowing impleadment of the heirs of Murarilal as
proforma respondents because, by that date, the
appeal had already abated. According to him, in
absence of condonation of delay in filing an
application to set aside abatement, or to substitute
the legal heirs, the appeal had abated by operation of
law and, therefore, such impleadment cannot revive
the appeal.
28. Besides that, the learned counsel for the
respondents submitted that the order dated
09.05.2011 deleting the name of Kishorilal/ Murarilal
was at the risk and cost of the appellants which
means that the order would not bar subsequent
adjudication of the issue on the principle of res
judicata .
29. On the other hand, the learned counsel for
the appellants laid emphasis on the observations in
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the subsequent order dated 04.03.2013 wherein the
Court had observed that since legal representatives of
Kishorilal, who have right, title and interest over the
disputed property, are already on record as
appellants No.2 and 3, the appeal would not abate.
According to the appellants, this observation in the
order dated 04.03.2013 coupled with subsequent
order dated 03.05.2013 bars, by principle of res
judicata, fresh consideration of the issue qua
abatement of the appeal on non-substitution of the
legal heirs of Murarilal (i.e., one of the heirs of
deceased-party Kishorilal).
30. As far as the principle of res judicata is
concerned, we are conscious of the law that it applies
also as between two stages in the same litigation to
the extent that a court, whether the trial court or a
higher court having at an earlier stage decided a
matter in one way will not allow the parties to re-
agitate the matter again at a subsequent stage of the
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7
same proceedings . However, what is important is
that this does not preclude the appellate court or a
8
higher court to test the correctness of that decision .
31. However, before delving further on the above
aspect, we shall first consider the decisions cited by
the learned counsel for the respondents to canvass
that a decree of specific performance must
necessarily require the vendor to execute the sale
deed even if the subject matter of sale agreement has
been sold by the vendor to a third person. According
to plaintiff-respondent’s counsel, though a
subsequent transferee may be required to join in the
conveyance, particularly where the transferee is not a
transferee lis pendens, the vendor would necessarily
have to join in the execution of the sale deed. As a
sequitur, it is argued, if the appeal abates qua the
vendor it abates as a whole.
7
See: Satyadhyan Ghosal & Ors. v. Deorajin Debi (Smt.) & Anr., 1960 SCC OnLine SC 15: AIR 1960 SC 941
8
See: Maharaja Moheshur Singh v. Bengal Government (1859) 7 MIA 283; affirmed in Satyadhyan Ghosal
(supra), paragraph 16.
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Vendor is necessary party in a suit for specific
performance
9
32. In Lala Durga Prasad , before this Court a
question arose as to what would be the proper form
of a decree in a suit for specific performance where
the subject matter of the sale agreement has been
sold and the title to the property has validly passed
from the vendor and resides in the subsequent
transferee i.e., where the sale to subsequent
transferee is not void but only voidable at the option
of the earlier contractor. On the said issue, this
Court considered and rejected three alternative forms
of decrees, namely, (a) compelling the vendor to
execute the sale deed; (b) cancelling the subsequent
sale and ordering conveyance in favour of plaintiff;
and (c) conveyance in favour of plaintiff by the
subsequent purchaser alone. After rejecting the
above three options, this Court held:
“42. In our opinion, the proper form of
decree is to direct specific performance of
9
See: Footnote 4
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the contract between the vendor and the
plaintiff and direct the subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
plaintiff. He does not join in any special
covenants made between the plaintiff and
his vendor; all he does is to pass on his title
to the plaintiff.”
10
33. In R.C. Chandiok , decision of this Court in
Lala Durga Prasad was followed.
11
34. In Dwarka Prasad , the question that arose
before this Court was whether in absence of
substitution of legal heirs of the vendor, the appeal
by a subsequent purchaser against the decree of
specific performance would abate. Two arguments
were raised on behalf of the appellant therein,
namely, (a) that vendor was not a necessary party as
the subsequent purchaser represents his interest;
and (b) the case would be covered by the provisions
of Order 41 Rule 4 of CPC. Both arguments were
rejected by this Court. While rejecting the first
argument, decision in Lala Durga Prasad was relied
10
See: Footnote 5
11
See: Footnote 6
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upon to hold that in a suit for specific performance
the vendor is a necessary party as he must join in the
execution of the sale deed. The second argument was
rejected by holding that since the appeal qua the
vendor would abate, the appeal at the behest of
subsequent purchaser cannot continue as it might
result in conflicting decrees.
35. The rationale of joining the vendor in the
conveyance in favour of holder of a decree of specific
performance, notwithstanding that vendor has
passed on his interest in the property to a third
person, is discernible from the following observations
in Dwarka Prasad :
“9. … In a suit instituted by a purchaser
against the vendor and a subsequent
purchaser for specific performance of the
contract of sale the proper form of the
decree is to direct specific performance of
the contract between the vendor and the
plaintiff and further direct the subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
plaintiff. … Thus, ...the conveyance has to
be executed by the vendor in favor of the
plaintiff who seeks specific performance of
the contract in his favor and the
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subsequent transferee has to join in the
conveyance only to pass his title which
resides in him. It has been made quite clear
that he does not join in any special
covenants made between the plaintiff and
his vendor. All that he does is to pass on his
title to the plaintiff. ….. It is thus difficult to
sustain the argument that the vendor is not
a necessary party when, according to the
view accepted by this court, the conveyance
has to be executed by him although the
subsequent purchaser has also to join as to
pass on the title which resides in him to the
plaintiff. It must be remembered that if
there are any special covenants and
conditions agreed upon in the contract for
sale between the original purchaser and the
vendor those have to be incorporated in the
sale although it is only the vendor who will
enter into them and the subsequent
purchaser will not join in those special
covenants. But without the vendor joining
in the execution of the sale deed special
covenants, if any, between him and the
original purchaser cannot be incorporated
in the sale deed. The whole idea and
purpose underlying a decree for specific
performance is that if a decree for such a
relief is granted the person who has agreed
to purchase the property should be put in
the same position which would have
obtained in case the contracting parties i.e.,
vendor and the purchaser had, pursuant to
the agreement, executed a deed of sale and
completed it in every way. Therefore, it is
essential that the vendor must join in the
execution of the sale deed. If that be so, it is
not possible to comprehend how he is not a
necessary party…”
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36. The law is thus settled that the vendor is a
necessary party in a suit for specific performance of
an agreement for sale, notwithstanding that vendor
has transferred his interest in the subject matter of
the agreement to a third party. Reason being that the
transferee/ third party cannot be subjected to special
covenants, if any, between the vendor and the
plaintiff-purchaser. Besides that, the object of the
decree of specific performance is to put the person
who has agreed to purchase the property in the same
position which he would have obtained in case the
contracting parties i.e., vendor and the purchaser
had, pursuant to the agreement, executed a deed of
sale and completed it in every way.
Decisions relied on behalf of the Appellants
37. Now, we shall consider the decisions cited by
the appellant, namely,
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(a) Bhurey Khan v. Yaseen Khan (Dead) by
12
LRs & Ors. . The issue under
consideration in this case was whether the
High Court was justified in abating the
second appeal for non-impleadment of
some of the heirs of the deceased
respondent. This Court, following its earlier
decision in Mahabir Prasad v. Jage Ram
13
& Others , held that where the estate of a
deceased party is sufficiently represented
by his legal heirs on record, proceedings
would not abate if some of the heirs are left
out. The said view has been followed in
Shivshankara & Anr. v. H.P. Vedavyasa
14
Char .
12
1995 Supp (3) SCC 331
13
(1971) 1 SCC 265. See Paragraph 7, where it was observed:
“7. …. Where in a proceeding a party dies and one of the legal representatives is
already on the record in another capacity, it is only necessary that he should be
described by an appropriate application made in that behalf that he is also on the
record, as an heir and legal representative. Even if there are other heirs and legal
representatives and no application for impleading them is made within the period
of limitation prescribed by the Limitation Act, the proceeding will not abate…”
14
(2023) 13 SCC 1, paragraphs 59 and 60
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(b) Mohammad Arif v. Allah Rabbul Alamin
15
& Ors. . In this case, it was held that
transferee from a deceased party could
represent the interest of the deceased party
as an intermeddler and if such transferee
is already on record, there is no necessity
for an application to bring on record the
legal heirs of the deceased appellant. [ Note:
It is not clear from the reported judgment
whether the suit here was for specific
performance of a contract.]
(c) K. Naina Mohamed (Dead) through LRs
v. A.M. Vasudevan Chettiar (dead)
16
through LRs & Ors. . In this case,
following Mohd. Arif (supra) , it was held
that party which has purchased the
property concerned can represent the
estate of deceased. [ Note: It is not clear from
15
(1982) 2 SCC 455
16
(2010) 7 SCC 603
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the reported judgment whether the suit was
for specific performance of a contract.
Although it appears to be based on right of
pre-emption. Otherwise also, in this case
decision in Lala Durga Prasad (supra)
was not considered. ]
17
(d) Y.B. Patil & Ors. v. Y.L. Patil . In this
case it was observed that principles of res
judicata can be invoked not only in
separate subsequent proceedings but also
in subsequent stage of the same
proceedings. Therefore, once an order is
made during a proceeding it becomes final
and is binding at any subsequent stage of
that proceeding. The same principle was
reiterated in Bhanu Kumar Jain v.
18
Archana Kumar & Anr.
17
(1976) 4 SCC 66
18
(2005) 1 SCC 787
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(e) Mithailal Dalsangar Singh & Ors. v.
19
Annabai Devram Kini & Ors. . In this
case, it was, inter alia , held that a simple
prayer to bring LRs on record, without
specifically praying for setting aside
abatement, may in substance be construed
as a prayer to set aside the abatement.
Further, the prayer for setting aside
abatement is to be considered liberally and
the courts must adopt a justice-oriented
approach dictated by the uppermost
consideration that ordinarily a litigant
ought not to be denied an opportunity of
having a lis determined on merits unless
he has, by gross negligence, deliberate
inaction or something akin to misconduct,
disentitled himself from seeking the
indulgence of the court.
19
(2003) 10 SCC 691
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Civil Appeal @ SLP (C) 36787/2017
(f) Madhukar Nivrutti Jagtap & Ors . v.
Pramilabai Chandulal Parandekar
20
(Dead) through LRs & Ors. . In this case
it was held that the effect of doctrine of lis
pendens is not to annul all transfers
effected by the parties to a suit but only to
render them subservient to the rights of
the parties under the decree or order which
may be made in that suit. [Note: This was
cited so as to canvass that the sale deed
executed by Kishorilal in favour of the
second and third appellants was not void
and, therefore, they could validly represent
the interest of Kishorilal and, therefore, the
appeal would not abate ].
Relevant legal principles deducible from the
decisions cited by both sides
20
(2020) 15 SCC 731
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38. Upon consideration of the decisions cited by
both sides, the legal principles deducible therefrom,
and relevant to the issue in hand, are summarized
below:
(1) Before declaring a suit or proceeding to
have abated on ground of non-substitution of
the heirs/ legal representatives of a deceased
party, the Court must examine whether the
interest of the deceased party qua the
subject matter of the proceeding is
sufficiently represented by other parties
already on record. If the interest of the
deceased party is sufficiently represented by
other parties already on record, and the
decree/order eventually passed in the suit or
proceeding would not be rendered non-
executable for absence of that party, the suit
or proceeding would not abate.
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(2) In a suit for specific performance of an
agreement for sale of an immovable property,
vendor is a necessary party notwithstanding
he has transferred his interest in the
property to a third party. As a sequitur, a
suit or an appeal emanating from such a suit
would abate if, upon death of the vendor, his
legal heirs/ representatives are not
substituted.
(3) Though a transfer lis pendens is not
always void, such transferee’s title is
subservient to the decree that may ultimately
be passed in the pending suit. As a sequitur,
a transferee lis pendens is not a necessary
party in a suit for specific performance.
(4) However, a transferee may
lis pendens
pursue the appeal against a decree of specific
performance against the vendor, as a legal
representative/ inter-meddler of the estate of
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the vendor. But, having regard to the nature
of decree that is required to be passed in a
suit for specific performance, as held in Lala
Durga Prasad (supra) and Dwarka Prasad
(supra), the vendor would have to be
impleaded as a party in the appeal and on
his death, on non-substitution of his heirs
/legal representatives, the appeal would
abate.
Kishorilal (deceased-defendant) sufficiently
represented in the appeal before the High Court
39. Having culled out the relevant legal
principles, we shall now consider whether, on non-
substitution of the heirs of Murarilal, the appeal had
abated or not. As noticed above, Murarilal was one
of the four heirs of Kishorilal. Kishorilal (appellant
No.1) had already transferred the property to
appellants No. 2 and 3 during the course of suit
proceeding. Therefore, on the date of filing the
appeal, title in the subject matter of the sale
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agreement resided in those appellants albeit
subservient to the decree. However, presence of
Kishorilal was necessary to effectively execute the
decree of specific performance which is in the nature
of a direction to fulfil contractual obligations. In
such circumstances, on death of Kishorilal, his LRs
were required to be brought on record. In the
present case, on the death of Kishorilal (i.e.,
appellant No.1) all his LRs were substituted as
appellants No. 1(1), 1(2), 1(3) and 1(4), though, later,
one of them, namely, Murarilal i.e., appellant 1(2),
died. Since three legal heirs of Kishorilal were
already on record, besides the appellants No.2 and 3
in whom title in the property resided, the estate of
Kishorilal was sufficiently represented and, therefore,
in our view, the appeal did not abate on non-
substitution of LRs of Murarilal as was rightly held
earlier by the High Court vide order dated
03.05.2013. The aforesaid view is in conformity with
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the law laid down by this Court in Bhurey Khan and
Mahabir Prasad .
40. The decision in Dwarka Prasad (supra),
relied by the learned counsel for respondents, in our
view, is not of much help to the respondents because
in that case the vendor’s interest was not represented
at all. Whereas in the present case, three out of four
legal heirs of Kishorilal (i.e., the vendor) were already
on record. In our view, there is a clear distinction
between non-substitution of the legal
representatives/ legal heirs of a deceased party and
non-substitution of one of the heirs of a deceased
party. In the latter, if the interest of the deceased
party is sufficiently represented by other heirs/ legal
representatives on record, there will be no abatement
as was held in Mahabir Prasad (supra) and Bhurey
Khan (supra) . Therefore, in our view, Dwarka
Prasad’s decision is distinguishable on facts.
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High Court’s final decision is hit by principle of
res judicata
41. Besides above, once the High Court, vide
order dated 03.05.2013, had taken the view that
appeal had not abated on non-substitution of heirs of
Murarilal i.e., appellant No.1(2), as other heirs of
Kishorlal were on record besides appellants 2 and 3,
it was not open for the High Court to revisit the issue
later, because such an exercise by the High Court
was hit by principle of res judicata which applies with
equal force to different stages of the same proceeding
as it does to a separate subsequent proceeding. In
this regard we are supported by decisions of this
21
Court in Satyadhyan Ghosal , Y.B. Patil (supra)
and Bhanu Kumar Jain (supra) .
42. The argument on behalf of respondent that
order dated 09.05.2011 specifically mentions that
deletion was at the risk of the appellant and,
therefore, the issue was kept open does not cut much
21
See; Footnote 7
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ice, because in the subsequent orders dated
04.03.2013 and 09.05.2013, the High Court
specifically held that appeal had not abated.
43. We are, therefore, of the considered view that
the appeal had not abated on non-substitution of the
heirs of Murarilal within time. Issue (i) and (ii) are
decided in the aforesaid terms.
Direction to delete name of Appellant No. 1 (i.e.,
Kishorilal’s name) from the array of parties was
nothing but a clerical/ typographical mistake in
the order dated 9.5.2011
44. So far as the direction in the order dated
09.05.2011 to delete appellant No.1 is concerned, it
was a pure clerical/ typographical error inasmuch as
the prayer made was to delete appellant No.1(2) i.e.,
Murarilal from the array of parties as other LRs of
Kishorilal sufficiently represented his interest. Such
a mistake could be corrected at any stage in exercise
of powers under Sections 151 and 152 of CPC.
Therefore, the plaintiff-respondent cannot take
advantage of the aforesaid mistake.
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Issue (iii)
45. As we have already concluded that appeal
had not abated on non-substitution of legal heirs of
deceased Murarilal i.e., appellant No.1(2), there was
no question of setting aside abatement. Rather, the
High Court was well within its jurisdiction in allowing
impleadment of his heirs as proforma respondents in
exercise of powers under Order 1 Rule 10 of CPC.
Issue (iii) is decided accordingly.
Issue (iv)
46. In view of our conclusion that the appeal had
not abated, the High Court had the discretion to
allow impleadment of Murarilal’s heirs and for such
impleadment, it was not required to condone the
delay or to set aside abatement. Issue (iv) is decided
accordingly.
Conclusion
47. In view of our findings on the issues framed
above, the view of the High Court that the appeal had
abated is erroneous and is liable to be set aside.
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Since the connected appeal was dismissed by the
High Court only on account of dismissal of the other
appeal as abated, the order dismissing the said
appeal is also liable to be set aside.
48. Consequently, these appeals are allowed. The
impugned order(s) dated 12.09.2017 passed by the
High Court in F.A. No.213 of 2000 and F.A. No.217 of
2000 are set aside. Both the aforesaid first appeals
are restored to their original number on the file of the
High Court and they shall be decided in accordance
with the law.
49. Pending applications, if any, in both the
appeals shall stand disposed of.
.....................................J.
(MANOJ MISRA)
..................................J.
(UJJAL BHUYAN)
New Delhi;
January 12, 2026.
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 172 OF 2026
(@ SLP (C) No(s). 36787 of 2017)
KISHORILAL (D) THR. LRS & ORS. …APPELLANT (S)
VERSUS
GOPAL & ORS. …RESPONDENT (S)
WITH
CIVIL APPEAL NO. 173 OF 2026
(@ SLP (C) No(s). 397 of 2018)
J U D G M E N T
MANOJ MISRA, J.
SLP (C) No. 36787 of 2017
1. Leave granted.
Facts giving rise to appeal (i.e., SLP (C) No.36787
of 2017)
2. This appeal arises from Original Suit No. 5A
Signature Not Verified
Digitally signed by
CHETAN ARORA
Date: 2026.01.12
16:06:05 IST
Reason:
of 1992 which was instituted by Gopal (first
Civil Appeal @ SLP (C) No.36787/2017 Page 1 of 43
respondent) against Kishorilal (i.e., first appellant
(since deceased), who is now represented through his
1
LRs ), inter alia , for declaration and injunction and,
later, by way of amendment, for specific performance
of agreement to purchase the suit scheduled
property. During pendency of the suit, Brajmohan
and Manoj (i.e., the appellants in the connected
appeal), purchased the suit property from Kishorilal,
vide sale-deed dated 20.04.1992.
3. The aforesaid suit was decreed on
18.10.2000. Aggrieved therewith, Kishorilal and the
transferees lis pendens , namely, Brajmohan and
Manoj, jointly filed appeal (i.e., F. A. No. 213 of 2000)
before the High Court of Madhya Pradesh, Bench at
2
Gwalior . During pendency of the appeal, Kishorilal
died on 17.12.2005. Therefore, vide order dated
10.07.2006, his LRs, namely, (i) Suresh, (ii)
Murarilal, (iii) Prakash and (iv) Sitabai were
1
Legal Representatives
2
High Court
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substituted as appellants No. 1(1), 1(2), 1(3) and 1(4),
respectively.
4. On 22.07.2007 Murarilal i.e., appellant No.
1(2) died. On his death, the remaining appellants
filed an application (i.e., IA No.17118 of 2010) on
19.10.2010 for deletion of Murarilal from the array of
parties on the ground that interest of Kishorilal in the
suit property is already represented by Brajmohan
and Manoj (i.e., appellants No. 2 and 3 who had
purchased the suit property) and other LRs of
Kishorilal. The said application was allowed by order
dated 09.05.2011, which reads as under:
“Heard on I.A. No. 17118/2010, which is an
application under Order XXII Rule 2, 4(4)
and under Section 11 of CPC (which should
be read Rule 11) for deleting the name of
appellant no.1 who has died and sold the
suit property to appellant no.2 and 3 who
are his legal representatives.
Considering the averments made in this
application, the same is allowed at the risk
and cost of the appellants. The name of
appellant no. 1 be deleted from the array of
cause title within one week.”
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[Note: There appears typographical mistake
in the above extracted order as the prayer in
IA No.17118/2010 was not to delete
Kishorilal (appellant no.1) from array of
parties but to delete one of his LRs, namely,
Murarilal i.e., appellant 1(2), as the estate of
Kishorilal was represented by appellants 2
and 3 and other LRs of Kishorilal.]
5. On deletion of Murarilal’s name from the
array of parties in the appeal, and non-substitution
of his LRs, an application (IA No.2667/ 2011) was
filed by the plaintiff-respondent (i.e., Gopal) to
dismiss the appeal as having abated. This application
was dismissed by the High Court vide order dated
04.03.2013, which is reproduced below:
“Heard on I.A. No. 2667/2011, which is an
application filed on behalf of respondents for
treating the appeal as abated as the legal
representatives of appellant Kishorilal have
not been brought on record.
Learned Counsel for the appellants
submitted that appellants no.2 and 3 have
already been brought on record as Legal
Representatives of appellant Kishorilal vide
order dated 09.05.2011 on the ground that
the disputed property has been sold by
Kishorilal to appellants no.2 and 3
therefore, appellants no.2 and 3, who are
purchasers lis pendens , are legal
representatives of appellant Kishorilal as the
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property has been purchased by them and
legal heirs of appellant Kishorilal have no
right, title or interest in the disputed
property.
Since the Legal Representatives of appellant
Kishorilal who are having the right, title and
interest over the disputed property are
already on record being appellants no.2 and
3, therefore, it cannot be said that the
appeal has abated.
Appellants may implead other legal heirs of
appellant Kishorilal as Legal
Representatives if they are necessary party
in the appeal.
List the case for final hearing in due course.”
After the aforesaid order was passed, on 14.03.2013
an application (IA No.1438/ 2013) was filed, under
Order 22 Rules 4 and 11 read with Order 1 Rule 10 of
3
the Code of Civil Procedure, 1908 , to implead heirs of
Murarilal as respondents. On this application, an
objection was filed by the plaintiff-respondent.
However, the application was allowed vide order dated
03.05.2013, which is reproduced below:
“Heard on I.A. No. 1438/2013 which is an
application under Order XXII Rule 4 and 11
C.P.C. and under Order I Rule 10 C.P.C. for
3
CPC
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deleting the name of original appellant no.1
as he has sold the property to appellant
no.2 and 3 and to bring the Legal
Representatives of appellant no. 1(2) on
record. Other Legal Representatives of
appellant no.1 are on record, therefore,
there is no abatement of appeal.
Let the necessary amendment be carried out
within 7 days from today.
List the case for final hearing in Second
Week of July, 2013.”
[Note: There appears some typographical
error in this order as I.A. No.1438/2013 did
not seek deletion of appellant no.1 rather it
sought impleading the heirs of Murarilal as
proforma respondents]
6. Thereafter, on 15.07.2017 an application was
filed by the appellants for setting aside abatement of
the appeal, if any, and for condoning the delay, if
any, in the interest of justice. To this application, on
20.07.2017 an objection was filed by the plaintiff-
respondent. While the aforesaid application was
pending, an application was filed for recall of the
order dated 09.05.2011 by which Kishorilal’s name
was erroneously deleted from the array of parties. To
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this application also, on 27.07.2017 an objection was
filed by the plaintiff-respondent.
7. By the impugned order dated 12.09.2017, the
High Court rejected the application of the appellants
to recall the order dated 09.05.2011 and held that on
deletion of Murarilal’s name from the array of parties,
the appeal had abated and, therefore, the appeal is
liable to be dismissed as having abated.
8. Aggrieved by the order of the High Court
dismissing the appeal as having abated, present
appeal, by special leave, has been filed.
SLP (C) No. 397 of 2018
9. Leave granted.
Facts giving rise to connected appeal (i.e., SLP (C)
No.397 of 2018
10. The connected appeal arises from Original
Suit No. 10A of 1995. This suit was instituted by
Brajmohan and Manoj (i.e., transferees of Kishorilal)
for eviction of Gopal (i.e., plaintiff-respondent in the
other appeal) from the suit scheduled property, inter
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alia , on the ground that the plaintiffs had purchased
the suit property through sale deed executed by
Kishorilal and the suit property is required for their
use.
11. The Trial Court dismissed the suit vide
judgment and order dated 18.10.2000. Against
which, F. A. No. 217 of 2000 was filed before the
High Court. As the High Court had dismissed First
Appeal No. 213 of 2000 as abated, the decree of
specific performance in favour of Gopal attained
finality, rendering the sale-deed in favour of
Brajmohan and Manoj void, F.A. No.217 of 2000 was
dismissed by the High Court vide separate order
dated 12.09.2017.
12. Aggrieved by dismissal of F.A. No.217 of
2000, the present appeal has been filed, by special
leave to appeal (i.e., SLP (C) No. 397 of 2018).
13. Since the decision of the High Court in F. A.
No. 217 of 2000 is a consequence of dismissal of F.A.
No. 213 of 2000 as abated, these two appeals were
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heard together and are being decided by a common
judgment and order.
14. We have heard Sri Puneet Jain, Sr. Adv., for
the appellant; and Sri Yatindra Singh, Sr. Adv., for
the respondents.
SUBMISSIONS ON BEHALF OF APPELLANTS
15. Learned counsel for the appellants submitted:
(i) Kishorilal (i.e. judgment-debtor in O.S. No.
5A of 1992) had already transferred his
interest in the suit scheduled property (i.e.,
subject matter of the agreement), therefore,
his interest was fully represented by the
purchasers i.e., transferees lis pendens ,
namely, Brajmohan and Manoj, who were on
record as appellants No. 2 and 3 in F.A. No.
213 of 2000; hence, on death of Kishorilal,
the appeal would not abate as the right to
pursue the appeal survived on the surviving
appellant(s).
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(ii) A transfer hit by Section 52 of the
Transfer of Property Act, 1882 (i.e. the
doctrine of lis pendens ) is not void though
subservient to the rights of the parties under
the decree or order which may be made in the
suit or the proceeding. In such
circumstances, Brajmohan and Manoj were
entitled to represent the estate of Kishorilal
not only as transferee but also as an inter-
meddler of the estate of Kishorilal.
(iii) Besides that, on death of Kishorilal, his
four legal heirs, namely, Suresh, Murarilal,
Prakash and Sitabai, were brought on record.
Even if one of them died, the estate of
Kishorilal was substantially represented
through Suresh, Prakash and Sitabai. Hence,
there was no question of abatement of the
appeal for non-substitution of the legal
representatives of Murarilal.
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(iv) If Kishorilal’s name was erroneously
deleted after his death, it could be restored by
recall/ correction. Moreover, his heirs and
legal representatives were already on record,
therefore, there was no question of abatement
of the appeal.
(v) The High Court order dated
vide
04.03.2013 had already negatived the plea of
abatement of appeal by observing that other
LRs of Kishorilal were on record besides
appellants No. 2 and 3 therefore, on non-
substitution of one of the heirs of Kishorilal,
High Court could not have declared appeal to
have abated. Moreover, such declaration was
barred by the principle of res judicata.
(vi) Otherwise also, High Court order
vide
dated 04.03.2013 had given liberty to implead
other legal representatives of Murarilal, in
case necessary, therefore, impleadment
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application was allowed vide order dated
03.05.2013. In such circumstances, when all
LRs of late Kishorilal were on record, there
was no justification to dismiss the appeal as
having abated.
SUBMISSIONS ON BEHALF OF RESPONDENT(S)
16. , learned counsel for the
Per contra
respondents submitted:
(i) A suit for specific performance is for
enforcement of contractual obligations. In
such a suit, the decree must require the
vendor and subsequent purchaser, if any, to
execute the sale-deed in favour of decree-
holder in terms of the agreement. This legal
position is settled by this Court in Lala
Durga Prasad and Others v. Lala Deep
4
Chand and Others , followed in R.C.
Chandiok and Anr. v. Chuni Lal
4
(1953) 2 SCC 509
Page 12 of 43
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5
Sabharwal and Ors. . Therefore, if all legal
heirs of Kishorilal (i.e., vendor) including heirs
of his legal heir (i.e., Murarilal) are not
brought on record, within the limitation
period, the decree of specific performance
would attain finality qua one of the heirs of
Kishorilal. And since decree of specific
performance is inseparable, continuance of
appeal might result in inconsistent decrees,
therefore, the appeal would abate as a whole
on non-substitution of one of the heirs of
Kishori Lal, namely, Murarilal.
(ii) In a suit for specific performance, the
vendor is a necessary party. Therefore, even if
the subsequent purchaser is on record, the
vendor would have to be on the record for a
valid decree. In such circumstances, the
benefit of Order 41 Rule 4 of CPC is not
available as was held by this Court in
5
(1970) 3 SCC 140
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Dwarka Prasad Singh and Others v.
6
Harikant Prasad Singh and Others .
(iii) Abatement is by operation of law.
Therefore, even in absence of a formal order,
the appeal or proceeding would abate for non-
substitution within the period of limitation.
(iv) Once abatement takes place, it can be set
aside by substitution after condoning the
delay and not by way of impleadment.
Therefore, if time for substitution has lapsed
and the appeal has abated, in absence of an
order condoning the delay in seeking
substitution and setting aside abatement, by
mere impleadment of LRs of a deceased party,
abatement cannot be deemed set aside.
Hence, the order dated 03.05.2013 is of no
consequence more so because Murarilal died
6
(1973) 1 SCC 179
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on 22.07.2007 and by the time impleadment
was allowed, the appeal had already abated.
(v) The application to set aside abatement was
filed on 24.07.2017 i.e. about 10 years after
Murarilal’s death. Therefore, it was justifiably
rejected by the High Court.
(vi) The order dated 09.05.2011 permitting
deletion of Kishorilal was at the risk of
appellants No. 2 and 3 and, therefore, the
said order cannot obviate subsequent
adjudication regarding abatement of appeal
on ground of res judicata .
Based on the aforesaid submissions, on behalf of
respondents, it was submitted that both appeals are
devoid of merit and should be dismissed.
17. We have considered the rival submissions and
have carefully perused the materials on record.
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ISSUES
18. Upon considering the rival submissions, in
our view, following issues arise for our consideration:
(i) Whether F. A. No. 213 of 2000 abated on
non-substitution of LRs of Murarilal i.e.,
appellant 1(2), who was one of the LRs of
deceased-judgment debtor Kishorilal?
(ii) Whether the order of the High Court, dated
03.05.2013, holding that appellants No. 2 and
3 along with other heirs of Kishorilal
sufficiently represented the interest of
Kishorilal in the appeal, would, by the
principle of res judicata , bar a declaration
that the appeal had abated?
(iii) Whether by allowing impleadment of the
heirs and legal representatives of Murarilal as
proforma respondents in F. A. No. 213 of
2000, vide order dated 03.05.2013, the High
Court, in effect set aside abatement, if any?
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(iv) Whether, in the peculiar facts of the case,
the High Court ought to have condoned the
delay and set aside the abatement, if any, of
F.A. No.213 of 2000?
ANALYSIS
Summary of undisputed facts
19. Before addressing the issues, a brief resume
of undisputed facts of the case would be apposite.
Suit No. 5A of 1992 was instituted by Gopal (plaintiff-
respondent) against Kishorilal for declaration and
injunction and, later, by way of amendment, for
specific performance of a purchase agreement
between Kishorilal and Gopal concerning the suit
property, which was sold by Kishorilal, during
pendency of the suit, to Brajmohan and Manoj (i.e.,
the appellants), vide sale-deed dated 20.04.1992. In
consequence, the appellants were also impleaded as
defendants.
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20. The suit was decreed by the trial court.
Against which, F. A. No. 213 of 2000 was jointly filed
by Kishorilal (i.e., appellant no.1), Brajmohan
(appellant no.2) and Manoj (appellant no.3) before the
High Court. During pendency of the appeal,
Kishorilal died on 17.12.2005. His legal heirs
including Murarilal were substituted order dated
vide
10.07.2006. Thereafter, Murarilal died in the year
2007. An application was submitted for deleting him
from the array of parties on the ground that interest
of Kishorilal was sufficiently represented by his other
LRs including appellants No. 2 and 3 (i.e., lis
pendens transferees). On this application, an order
was passed on 09.05.2011 deleting appellant no.1
(Kishorilal) from the array of parties, when the prayer
was to delete Murarilal. It is necessary to note that
on the date when order dated 09.05.2011 was passed
Kishorilal was already dead and stood substituted by
his four legal heirs including Murarilal. Thus, it is
clear that the direction to delete Kishorilal from the
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array of parties was nothing but a typographical
mistake which ought to be read/considered as a
direction to delete Murarilal as is clear from
subsequent orders passed in the course of the
appeal.
21. In the aforesaid context, when plaintiff-
respondent filed an application for abatement on
non-substitution of LRs of Murarilal, the High Court
passed an order on 04.03.2013 holding that since
LRs of Kishorilal, namely, appellants No. 2 and 3,
who had purchased the property, and other legal
heirs were there on record, the appeal cannot be said
to have abated. However, the High Court gave liberty
to implead other heirs of Kishorilal. Pursuant thereto,
application was filed to bring on record heirs of
Murarilal as proforma respondents. On this
application, vide order dated 03.05.2013, the High
Court allowed impleadment of Murarilal’s heirs as
proforma respondents.
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22. Later, when, during hearing of the appeal,
issue was raised by the decree holder that appeal has
already abated consequent to non-substitution of the
heirs of Murarilal, formal application was filed for
setting aside abatement along with prayer to condone
the delay. This application was rejected and the
appeal (i.e., F.A. No.213 of 2000) was dismissed as
having abated vide impugned order dated
12.09.2017.
23. In view of dismissal of F.A. No.213 of 2000,
the decree of specific performance in favour of
defendant in Suit No.10A of 1995 became operative,
therefore, F.A. No.217 of 2000, arising from dismissal
of Suit No.10A of 1995, was dismissed vide second
impugned order dated 12.09.2017.
24. On summation of facts what becomes clear is
that out of four heirs of Kishorilal, three remained on
record. The fourth, namely, Murarilal, died and was
not substituted within time. Though, later, his heirs
and legal representatives were also brought on record
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as proforma respondents in the appeal. In that
context, we shall address the issues.
Issues (i) and (ii)
25. Issues (i) and (ii) are inter-related, therefore
we shall address them together.
26. As we have noticed above that on death of
Kishorilal (i.e., appellant No.1) all his four heirs were
brought on record of F.A. No.213 of 2000 and, later,
on death of one of his heirs i.e., Murarilal, his LRs
were also brought on record, though beyond the
period prescribed by the law of limitation. It is thus
not a case where deceased Kishorilal (i.e., the vendor)
was totally unrepresented. Rather, he was
represented, initially, through his four legal heirs
and, later, on death of one of them, namely,
Murarilal, by three of them and the purchaser of his
interest in the property (i.e., the appellants No. 2 and
3). Later, even legal heirs of Murarilal were brought
on record as proforma-respondents through an order
of impleadment.
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27. The thrust of the submissions of the learned
counsel for the respondent(s) is on there being no
application of mind on the part of the High Court in
allowing impleadment of the heirs of Murarilal as
proforma respondents because, by that date, the
appeal had already abated. According to him, in
absence of condonation of delay in filing an
application to set aside abatement, or to substitute
the legal heirs, the appeal had abated by operation of
law and, therefore, such impleadment cannot revive
the appeal.
28. Besides that, the learned counsel for the
respondents submitted that the order dated
09.05.2011 deleting the name of Kishorilal/ Murarilal
was at the risk and cost of the appellants which
means that the order would not bar subsequent
adjudication of the issue on the principle of res
judicata .
29. On the other hand, the learned counsel for
the appellants laid emphasis on the observations in
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the subsequent order dated 04.03.2013 wherein the
Court had observed that since legal representatives of
Kishorilal, who have right, title and interest over the
disputed property, are already on record as
appellants No.2 and 3, the appeal would not abate.
According to the appellants, this observation in the
order dated 04.03.2013 coupled with subsequent
order dated 03.05.2013 bars, by principle of res
judicata, fresh consideration of the issue qua
abatement of the appeal on non-substitution of the
legal heirs of Murarilal (i.e., one of the heirs of
deceased-party Kishorilal).
30. As far as the principle of res judicata is
concerned, we are conscious of the law that it applies
also as between two stages in the same litigation to
the extent that a court, whether the trial court or a
higher court having at an earlier stage decided a
matter in one way will not allow the parties to re-
agitate the matter again at a subsequent stage of the
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7
same proceedings . However, what is important is
that this does not preclude the appellate court or a
8
higher court to test the correctness of that decision .
31. However, before delving further on the above
aspect, we shall first consider the decisions cited by
the learned counsel for the respondents to canvass
that a decree of specific performance must
necessarily require the vendor to execute the sale
deed even if the subject matter of sale agreement has
been sold by the vendor to a third person. According
to plaintiff-respondent’s counsel, though a
subsequent transferee may be required to join in the
conveyance, particularly where the transferee is not a
transferee lis pendens, the vendor would necessarily
have to join in the execution of the sale deed. As a
sequitur, it is argued, if the appeal abates qua the
vendor it abates as a whole.
7
See: Satyadhyan Ghosal & Ors. v. Deorajin Debi (Smt.) & Anr., 1960 SCC OnLine SC 15: AIR 1960 SC 941
8
See: Maharaja Moheshur Singh v. Bengal Government (1859) 7 MIA 283; affirmed in Satyadhyan Ghosal
(supra), paragraph 16.
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Vendor is necessary party in a suit for specific
performance
9
32. In Lala Durga Prasad , before this Court a
question arose as to what would be the proper form
of a decree in a suit for specific performance where
the subject matter of the sale agreement has been
sold and the title to the property has validly passed
from the vendor and resides in the subsequent
transferee i.e., where the sale to subsequent
transferee is not void but only voidable at the option
of the earlier contractor. On the said issue, this
Court considered and rejected three alternative forms
of decrees, namely, (a) compelling the vendor to
execute the sale deed; (b) cancelling the subsequent
sale and ordering conveyance in favour of plaintiff;
and (c) conveyance in favour of plaintiff by the
subsequent purchaser alone. After rejecting the
above three options, this Court held:
“42. In our opinion, the proper form of
decree is to direct specific performance of
9
See: Footnote 4
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the contract between the vendor and the
plaintiff and direct the subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
plaintiff. He does not join in any special
covenants made between the plaintiff and
his vendor; all he does is to pass on his title
to the plaintiff.”
10
33. In R.C. Chandiok , decision of this Court in
Lala Durga Prasad was followed.
11
34. In Dwarka Prasad , the question that arose
before this Court was whether in absence of
substitution of legal heirs of the vendor, the appeal
by a subsequent purchaser against the decree of
specific performance would abate. Two arguments
were raised on behalf of the appellant therein,
namely, (a) that vendor was not a necessary party as
the subsequent purchaser represents his interest;
and (b) the case would be covered by the provisions
of Order 41 Rule 4 of CPC. Both arguments were
rejected by this Court. While rejecting the first
argument, decision in Lala Durga Prasad was relied
10
See: Footnote 5
11
See: Footnote 6
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upon to hold that in a suit for specific performance
the vendor is a necessary party as he must join in the
execution of the sale deed. The second argument was
rejected by holding that since the appeal qua the
vendor would abate, the appeal at the behest of
subsequent purchaser cannot continue as it might
result in conflicting decrees.
35. The rationale of joining the vendor in the
conveyance in favour of holder of a decree of specific
performance, notwithstanding that vendor has
passed on his interest in the property to a third
person, is discernible from the following observations
in Dwarka Prasad :
“9. … In a suit instituted by a purchaser
against the vendor and a subsequent
purchaser for specific performance of the
contract of sale the proper form of the
decree is to direct specific performance of
the contract between the vendor and the
plaintiff and further direct the subsequent
transferee to join in the conveyance so as to
pass on the title which resides in him to the
plaintiff. … Thus, ...the conveyance has to
be executed by the vendor in favor of the
plaintiff who seeks specific performance of
the contract in his favor and the
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subsequent transferee has to join in the
conveyance only to pass his title which
resides in him. It has been made quite clear
that he does not join in any special
covenants made between the plaintiff and
his vendor. All that he does is to pass on his
title to the plaintiff. ….. It is thus difficult to
sustain the argument that the vendor is not
a necessary party when, according to the
view accepted by this court, the conveyance
has to be executed by him although the
subsequent purchaser has also to join as to
pass on the title which resides in him to the
plaintiff. It must be remembered that if
there are any special covenants and
conditions agreed upon in the contract for
sale between the original purchaser and the
vendor those have to be incorporated in the
sale although it is only the vendor who will
enter into them and the subsequent
purchaser will not join in those special
covenants. But without the vendor joining
in the execution of the sale deed special
covenants, if any, between him and the
original purchaser cannot be incorporated
in the sale deed. The whole idea and
purpose underlying a decree for specific
performance is that if a decree for such a
relief is granted the person who has agreed
to purchase the property should be put in
the same position which would have
obtained in case the contracting parties i.e.,
vendor and the purchaser had, pursuant to
the agreement, executed a deed of sale and
completed it in every way. Therefore, it is
essential that the vendor must join in the
execution of the sale deed. If that be so, it is
not possible to comprehend how he is not a
necessary party…”
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36. The law is thus settled that the vendor is a
necessary party in a suit for specific performance of
an agreement for sale, notwithstanding that vendor
has transferred his interest in the subject matter of
the agreement to a third party. Reason being that the
transferee/ third party cannot be subjected to special
covenants, if any, between the vendor and the
plaintiff-purchaser. Besides that, the object of the
decree of specific performance is to put the person
who has agreed to purchase the property in the same
position which he would have obtained in case the
contracting parties i.e., vendor and the purchaser
had, pursuant to the agreement, executed a deed of
sale and completed it in every way.
Decisions relied on behalf of the Appellants
37. Now, we shall consider the decisions cited by
the appellant, namely,
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(a) Bhurey Khan v. Yaseen Khan (Dead) by
12
LRs & Ors. . The issue under
consideration in this case was whether the
High Court was justified in abating the
second appeal for non-impleadment of
some of the heirs of the deceased
respondent. This Court, following its earlier
decision in Mahabir Prasad v. Jage Ram
13
& Others , held that where the estate of a
deceased party is sufficiently represented
by his legal heirs on record, proceedings
would not abate if some of the heirs are left
out. The said view has been followed in
Shivshankara & Anr. v. H.P. Vedavyasa
14
Char .
12
1995 Supp (3) SCC 331
13
(1971) 1 SCC 265. See Paragraph 7, where it was observed:
“7. …. Where in a proceeding a party dies and one of the legal representatives is
already on the record in another capacity, it is only necessary that he should be
described by an appropriate application made in that behalf that he is also on the
record, as an heir and legal representative. Even if there are other heirs and legal
representatives and no application for impleading them is made within the period
of limitation prescribed by the Limitation Act, the proceeding will not abate…”
14
(2023) 13 SCC 1, paragraphs 59 and 60
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(b) Mohammad Arif v. Allah Rabbul Alamin
15
& Ors. . In this case, it was held that
transferee from a deceased party could
represent the interest of the deceased party
as an intermeddler and if such transferee
is already on record, there is no necessity
for an application to bring on record the
legal heirs of the deceased appellant. [ Note:
It is not clear from the reported judgment
whether the suit here was for specific
performance of a contract.]
(c) K. Naina Mohamed (Dead) through LRs
v. A.M. Vasudevan Chettiar (dead)
16
through LRs & Ors. . In this case,
following Mohd. Arif (supra) , it was held
that party which has purchased the
property concerned can represent the
estate of deceased. [ Note: It is not clear from
15
(1982) 2 SCC 455
16
(2010) 7 SCC 603
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the reported judgment whether the suit was
for specific performance of a contract.
Although it appears to be based on right of
pre-emption. Otherwise also, in this case
decision in Lala Durga Prasad (supra)
was not considered. ]
17
(d) Y.B. Patil & Ors. v. Y.L. Patil . In this
case it was observed that principles of res
judicata can be invoked not only in
separate subsequent proceedings but also
in subsequent stage of the same
proceedings. Therefore, once an order is
made during a proceeding it becomes final
and is binding at any subsequent stage of
that proceeding. The same principle was
reiterated in Bhanu Kumar Jain v.
18
Archana Kumar & Anr.
17
(1976) 4 SCC 66
18
(2005) 1 SCC 787
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(e) Mithailal Dalsangar Singh & Ors. v.
19
Annabai Devram Kini & Ors. . In this
case, it was, inter alia , held that a simple
prayer to bring LRs on record, without
specifically praying for setting aside
abatement, may in substance be construed
as a prayer to set aside the abatement.
Further, the prayer for setting aside
abatement is to be considered liberally and
the courts must adopt a justice-oriented
approach dictated by the uppermost
consideration that ordinarily a litigant
ought not to be denied an opportunity of
having a lis determined on merits unless
he has, by gross negligence, deliberate
inaction or something akin to misconduct,
disentitled himself from seeking the
indulgence of the court.
19
(2003) 10 SCC 691
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(f) Madhukar Nivrutti Jagtap & Ors . v.
Pramilabai Chandulal Parandekar
20
(Dead) through LRs & Ors. . In this case
it was held that the effect of doctrine of lis
pendens is not to annul all transfers
effected by the parties to a suit but only to
render them subservient to the rights of
the parties under the decree or order which
may be made in that suit. [Note: This was
cited so as to canvass that the sale deed
executed by Kishorilal in favour of the
second and third appellants was not void
and, therefore, they could validly represent
the interest of Kishorilal and, therefore, the
appeal would not abate ].
Relevant legal principles deducible from the
decisions cited by both sides
20
(2020) 15 SCC 731
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38. Upon consideration of the decisions cited by
both sides, the legal principles deducible therefrom,
and relevant to the issue in hand, are summarized
below:
(1) Before declaring a suit or proceeding to
have abated on ground of non-substitution of
the heirs/ legal representatives of a deceased
party, the Court must examine whether the
interest of the deceased party qua the
subject matter of the proceeding is
sufficiently represented by other parties
already on record. If the interest of the
deceased party is sufficiently represented by
other parties already on record, and the
decree/order eventually passed in the suit or
proceeding would not be rendered non-
executable for absence of that party, the suit
or proceeding would not abate.
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(2) In a suit for specific performance of an
agreement for sale of an immovable property,
vendor is a necessary party notwithstanding
he has transferred his interest in the
property to a third party. As a sequitur, a
suit or an appeal emanating from such a suit
would abate if, upon death of the vendor, his
legal heirs/ representatives are not
substituted.
(3) Though a transfer lis pendens is not
always void, such transferee’s title is
subservient to the decree that may ultimately
be passed in the pending suit. As a sequitur,
a transferee lis pendens is not a necessary
party in a suit for specific performance.
(4) However, a transferee may
lis pendens
pursue the appeal against a decree of specific
performance against the vendor, as a legal
representative/ inter-meddler of the estate of
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the vendor. But, having regard to the nature
of decree that is required to be passed in a
suit for specific performance, as held in Lala
Durga Prasad (supra) and Dwarka Prasad
(supra), the vendor would have to be
impleaded as a party in the appeal and on
his death, on non-substitution of his heirs
/legal representatives, the appeal would
abate.
Kishorilal (deceased-defendant) sufficiently
represented in the appeal before the High Court
39. Having culled out the relevant legal
principles, we shall now consider whether, on non-
substitution of the heirs of Murarilal, the appeal had
abated or not. As noticed above, Murarilal was one
of the four heirs of Kishorilal. Kishorilal (appellant
No.1) had already transferred the property to
appellants No. 2 and 3 during the course of suit
proceeding. Therefore, on the date of filing the
appeal, title in the subject matter of the sale
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agreement resided in those appellants albeit
subservient to the decree. However, presence of
Kishorilal was necessary to effectively execute the
decree of specific performance which is in the nature
of a direction to fulfil contractual obligations. In
such circumstances, on death of Kishorilal, his LRs
were required to be brought on record. In the
present case, on the death of Kishorilal (i.e.,
appellant No.1) all his LRs were substituted as
appellants No. 1(1), 1(2), 1(3) and 1(4), though, later,
one of them, namely, Murarilal i.e., appellant 1(2),
died. Since three legal heirs of Kishorilal were
already on record, besides the appellants No.2 and 3
in whom title in the property resided, the estate of
Kishorilal was sufficiently represented and, therefore,
in our view, the appeal did not abate on non-
substitution of LRs of Murarilal as was rightly held
earlier by the High Court vide order dated
03.05.2013. The aforesaid view is in conformity with
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the law laid down by this Court in Bhurey Khan and
Mahabir Prasad .
40. The decision in Dwarka Prasad (supra),
relied by the learned counsel for respondents, in our
view, is not of much help to the respondents because
in that case the vendor’s interest was not represented
at all. Whereas in the present case, three out of four
legal heirs of Kishorilal (i.e., the vendor) were already
on record. In our view, there is a clear distinction
between non-substitution of the legal
representatives/ legal heirs of a deceased party and
non-substitution of one of the heirs of a deceased
party. In the latter, if the interest of the deceased
party is sufficiently represented by other heirs/ legal
representatives on record, there will be no abatement
as was held in Mahabir Prasad (supra) and Bhurey
Khan (supra) . Therefore, in our view, Dwarka
Prasad’s decision is distinguishable on facts.
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High Court’s final decision is hit by principle of
res judicata
41. Besides above, once the High Court, vide
order dated 03.05.2013, had taken the view that
appeal had not abated on non-substitution of heirs of
Murarilal i.e., appellant No.1(2), as other heirs of
Kishorlal were on record besides appellants 2 and 3,
it was not open for the High Court to revisit the issue
later, because such an exercise by the High Court
was hit by principle of res judicata which applies with
equal force to different stages of the same proceeding
as it does to a separate subsequent proceeding. In
this regard we are supported by decisions of this
21
Court in Satyadhyan Ghosal , Y.B. Patil (supra)
and Bhanu Kumar Jain (supra) .
42. The argument on behalf of respondent that
order dated 09.05.2011 specifically mentions that
deletion was at the risk of the appellant and,
therefore, the issue was kept open does not cut much
21
See; Footnote 7
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ice, because in the subsequent orders dated
04.03.2013 and 09.05.2013, the High Court
specifically held that appeal had not abated.
43. We are, therefore, of the considered view that
the appeal had not abated on non-substitution of the
heirs of Murarilal within time. Issue (i) and (ii) are
decided in the aforesaid terms.
Direction to delete name of Appellant No. 1 (i.e.,
Kishorilal’s name) from the array of parties was
nothing but a clerical/ typographical mistake in
the order dated 9.5.2011
44. So far as the direction in the order dated
09.05.2011 to delete appellant No.1 is concerned, it
was a pure clerical/ typographical error inasmuch as
the prayer made was to delete appellant No.1(2) i.e.,
Murarilal from the array of parties as other LRs of
Kishorilal sufficiently represented his interest. Such
a mistake could be corrected at any stage in exercise
of powers under Sections 151 and 152 of CPC.
Therefore, the plaintiff-respondent cannot take
advantage of the aforesaid mistake.
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Issue (iii)
45. As we have already concluded that appeal
had not abated on non-substitution of legal heirs of
deceased Murarilal i.e., appellant No.1(2), there was
no question of setting aside abatement. Rather, the
High Court was well within its jurisdiction in allowing
impleadment of his heirs as proforma respondents in
exercise of powers under Order 1 Rule 10 of CPC.
Issue (iii) is decided accordingly.
Issue (iv)
46. In view of our conclusion that the appeal had
not abated, the High Court had the discretion to
allow impleadment of Murarilal’s heirs and for such
impleadment, it was not required to condone the
delay or to set aside abatement. Issue (iv) is decided
accordingly.
Conclusion
47. In view of our findings on the issues framed
above, the view of the High Court that the appeal had
abated is erroneous and is liable to be set aside.
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Since the connected appeal was dismissed by the
High Court only on account of dismissal of the other
appeal as abated, the order dismissing the said
appeal is also liable to be set aside.
48. Consequently, these appeals are allowed. The
impugned order(s) dated 12.09.2017 passed by the
High Court in F.A. No.213 of 2000 and F.A. No.217 of
2000 are set aside. Both the aforesaid first appeals
are restored to their original number on the file of the
High Court and they shall be decided in accordance
with the law.
49. Pending applications, if any, in both the
appeals shall stand disposed of.
.....................................J.
(MANOJ MISRA)
..................................J.
(UJJAL BHUYAN)
New Delhi;
January 12, 2026.
Page 43 of 43
Civil Appeal @ SLP (C) 36787/2017