Sulthan Said Ibrahim vs. Prakasan

2025 INSC 764
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7108 OF 2025
(@SPECIAL LEAVE PETITION (C) NO. 4307 OF 2022)

SULTHAN SAID IBRAHIM …Appellant(s)
VERSUS
PRAKASAN & ORS. …Respondent(s)

J U D G M E N T
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2025.05.26
12:25:06 IST
Reason:

J. B. PARDIWALA, J.
1. Leave granted.
2. The path to justice is often winding, shaped by the weight of hierarchy and
the labyrinth of procedure. The seeker, weary yet resolute, climbs each
rung of the judicial ladder, only to stand at the summit with hope
overshadowed by the fear of denied relief. The respondent no. 1 before us
embodies this relentless pursuit—a traveller in the quest for justice,
yearning for its elusive embrace.
3. The present appeal arises from the judgment and order dated 29.11.2021
passed by the High Court of Kerala at Ernakulam in OP(C) No. 2290 of
2013 whereby the High Court dismissed the original petition filed by the
appellant and thereby affirmed the order passed by the Principal Sub
Judge, Palakkad in I.A. No. 2348/2012 in O.S. No. 617/1996 rejecting the
application filed by the appellant seeking the deletion of his name from the
array of parties.
A. FACTUAL MATRIX
4. The appellant is the grandson of one Late Jameela Beevi. Late Jameela
Beevi was the original defendant in O.S. No. 617 of 1996, instituted by the
respondent no. 1 herein (original plaintiff) before the Principal Sub Court,
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Palakkad seeking specific performance of the agreement to sell dated
14.06.1996 executed between the original plaintiff and the original
defendant, whereby the original defendant undertook to transfer the suit
property to the original plaintiff for a total consideration of Rs. 6,00,000/-,
upon payment of the balance sale consideration of Rs. 1,50,000/- within
three months from the execution of the agreement. Pertinently, the
appellant herein was one of the witnesses to the sale agreement.
5. The suit property, measuring 1 cent, situated in Keezhumuri Desom, Ward
No. 3, Block 42, Survey No. 1895, Palakkad Town, Kerala, comprises of a
tiled-roofed shop with walls on three sides and two shutters on the front
side along with the land on which the shop stands. The same was
purchased by the original defendant vide assignment deed dated
10.09.1976. It is noteworthy that clause 8 of the said deed if read with the
property description indicates the factum of tenancy, inter alia , of one of
the sons of the original defendant and the father of the appellant, Late
Shahul Hameed. It is the case of the appellant that his father was a tenant
of the suit property from 1969 till his death on 01.11.1992.
6. The case before us has a convoluted history and there have been delays at
multiple stages of the proceedings. Despite having obtained an ex-parte
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decree way long back in 1998, and a final decree after contested hearing in
2003, the original plaintiff is yet to obtain the possession of the suit
property. For the sake of clarity, we must look into and discuss the
different stages wherein delay was caused under different headings so as to
demonstrate how well the process of law can be abused by dubious
litigants in this country.
Phase - I
7. The case of the original plaintiff before the Trial Court was that although
he was always ready and willing to pay the balance consideration, yet the
original defendant was not inclined towards executing the sale deed for the
suit property. As the original defendant failed to execute the sale deed
within a period of three months from the date of entering into the
agreement, despite issuing a legal notice, he instituted a suit for specific
performance.
8. The O.S. No. 617/1996 instituted by the original plaintiff was decreed ex
parte on 30.06.1998 and the original defendant was directed to execute the
sale deed in favor of the original plaintiff upon payment of the balance
consideration.
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9. The original defendant filed I.A. No. 2204 of 1998 seeking to set aside the
ex parte decree, which was dismissed by the Trial Court on 30.06.1999.
The original defendant challenged the order of the Trial Court before the
High Court in CMA No. 125 of 1999, which came to be allowed, thereby
restoring the suit for trial.
Phase - II
10. Upon restoration, the original defendant filed written statement before the
Trial Court contesting that there was no agreement to sell existing between
the parties and he had no interest in selling the property. The suit property
was being utilised by her son for selling sugar and other grocery items, and
she had to obtain a loan of Rs 4,50,000/- for the purpose of the wedding of
her granddaughter. In lieu of the loan, the original plaintiff had obtained
some signed papers from her and had misused them to forge the agreement
to sell.
11. The suit came to be decreed by the Trial Court on 17.03.2003, which held
that the execution of the agreement to sell was proved by the original
plaintiff and the defence put forth by the original defendant was not
credible. The Trial Court directed the original defendant to execute the sale
deed upon payment of the remaining sale consideration.
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Phase - III
12. The order of the Trial Court decreeing the suit was challenged by the
original defendant by way of filing RFA No. 281 of 2003 before the High
Court. However, the High Court dismissed the same and affirmed the order
of the Trial Court vide its judgment dated 02.08.2008.
13. The original defendant further challenged the order of the High Court
before this Court by way of SLP (C) No. 18880 of 2008. However, the
same also came to be dismissed vide order dated 13.08.2008, thereby
conclusively affirming the decree for specific performance granted by the
Trial Court.
Phase - IV
14. Upon failure of the original defendant to execute the sale deed after
accepting the balance consideration, the original plaintiff moved the I.A.
No. 2548/2003 in O.S. No. 617/1996 under Section 28(5) read with Order
XXI Rule 19 of the Code of Civil Procedure (for short, “ the CPC ”) on
30.07.2003 seeking the execution of the sale deed in its favour by the
intervention of the court.
15. During the pendency of the execution proceedings, the original defendant
passed away on 19.10.2008, necessitating impleadment of her legal heirs.
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The original plaintiff filed I.A. No. 3823 of 2008 in I.A. No. 2548/2003 in
O.S. No. 617/1996 on 20.11.2008 to bring her legal heirs on record which
came to be allowed by the Trial Court.
16. Objections were raised by some of the legal heirs of the original plaintiff,
inter alia , on the ground that the relief of possession was not granted by
the Trial Court despite having been pleaded and thus there was no liability
to hand over the possession to the original plaintiff even if a sale deed had
to be executed. Further, the original plaintiff had failed to deposit the
entire balance sale consideration in time and had deposited only the
balance amount after deducting the costs awarded by the Trial Court while
decreeing the suit. For the aforesaid reasons, the execution was objected
on the ground that the contract stood rescinded. It is pertinent to note that
the appellant herein, being one of the impleaded parties, initially raised no
objection to his impleadment.
17. I.A. No. 669/2009 in O.S. No. 617/1996 under Section 28 of the Specific
Relief Act, 1963 (for short, “ the SRA, 1963 ”) was also filed by some of
the legal heirs of the original defendant seeking a declaration that the
contract stood rescinded.
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18. The Principal Sub Court, Palakkad, dismissed the I.A. No. 669 of 2009 on
11.04.2012, observing that the deposit of Rs. 97,116/- made on 30.07.2003
by the original plaintiff was valid and in compliance with I.A. No. 931 of
2004, wherein the High Court, during the pendency of the first appeal
against the decree, had permitted the respondent to deposit the balance
amount after deducting costs. The court further ruled that possession of the
property was implicit in the decree for specific performance of the
agreement to sell.
Phase - V
19. Aggrieved by the aforesaid, the legal heirs of the original defendant filed
CRP No. 233 of 2012 before the High Court of Kerala, which came to be
dismissed on 14.06.2012, affirming that rescission of contract was
unwarranted.
Phase - VI
20. Shortly thereafter, the appellant filed I.A. No. 2348 of 2012 in I.A. No.
2548/2003 in OS No. 617 of 1996 on 19.07.2012 under Order I Rule 10(2)
of the CPC seeking deletion of his name from the array of parties, on the
ground that he was wrongly impleaded as a legal heir under the
Mohammedan Law and further asserting that he was a tenant in the suit
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property, having inherited the tenancy from his late father. He submitted
that he was carrying on business from the suit property and his tenancy
rights could not have been adjudicated in the execution proceedings. The
original plaintiff objected to the said I.A., inter alia , on the ground that the
appellant had failed to raise any of the said objections on any prior
occasion and was doing the same only to obstruct and delay the execution
proceedings.
21. The Trial Court dismissed the said I.A. on 19.06.2013 and held that the
appellant was attempting to delay the execution by raising frivolous issues
and that too after having failed to raise during the prior proceedings. The
court noted that the appellant was a witness to the sale agreement dated
14.06.1996, had previously participated in litigation without objecting, and
was now employing a strategy of filing repetitive interlocutory
applications to obstruct the execution of the decree. The relevant
observations made by the Trial Court are reproduced hereinbelow:
“[…] The records would show that supplemental respondents 2
to 14 in I.A. 2548/2003 were sought to be impleaded as per I.A.
3823/2008. On filing that petition notice thereof was issued on
26.11.2008 to the proposed supplemental respondents 2 to 14.
Those respondents tendered appearance. That was the first
opportunity for the petitioner herein to contend that he is not a
legal heir of Jameela Beevi and he ought not to be impleaded.
That was not done by him. It is to be noted that the court would
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implead under Order XXII Rule 4 CPC after due enquiry.
During that enquiry the petitioner ought and might have
contended that he is not a legal heir of Jameela Beevi. After his
impleadment several petitions were preferred. I.A. 669/2009 is
a petition under section 28 of the specific Relief Act to rescind
the contract. The petitioner herein was a respondent in that
petition. After detailed enquiry that petition was dismissed on
11.04.2012. Against that order CRP 233/12 was preferred
before the Hon. High Court. The petitioner herein was the 5th
respondent in that CRP. That CRP was dismissed on
14.06.2012. In these proceedings also petitioner herein had no
case that he is an unnecessary party. On the other hand, he
participated in those proceedings. On 24.07.2012 this petition
is filed. It is to be noted that the decree directing execution of
sale deed was passed on 17.03.2003, a decade ago, RFA
281/2003 was dismissed on 02.04 2008. The decree attained
finality. I.A.2548/2003 was pending while dismissing RFA
281/2003. Since then the supplemental respondents, one after
other, is filing petitions in their cunning strategy to delay the
execution of a sale deed pursuant to the decree, I.A. 669/2009
was one such petition, CRP 233/2012 against the order of
dismissal of that petition was dismissed on 14.06.2012, Next
month, on 24.07.2012, the petitioner has come forward with
this petition, on experimental basis to open a new battle field,
on the frantic attempt to delay the implementation of the
decree, claiming tenancy right over the subject property alleged
to be inherited from his father. So long as he is in the party
array as legal heir of deceased original defendant the new plea
cannot be put forward. It is to circumvent that situation now he
has come forward with this plea to remove him from the party
array as he being not a legal heir of Jameela Beevi despite the
fact that such a plea was not taken over these years either at
the time of his impleadment or while participating in a series of
interlocutory applications. This petition, is yet another ruse
adopted by the respondents to delay the execution of a sale
deed pursuant to the decree. The petition is barred by
constructive resjudicata besides being devoid of bonafides.
Therefore, it is dismissed with cost to the 1st
respondent/plaintiff.”
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22. The appellant challenged the order of the Trial Court before the High
Court in O.P. (C) No. 2290 of 2013, however the same came to be
dismissed vide the impugned order dated 29.11.2021. The High Court
observed that the impleadment of the appellant was valid and his I.A.
seeking deletion from the array of parties was barred by res judicata . The
High Court also observed that the claim of the appellant for independent
possession was also rightly rejected by the Trial Court. The relevant
observations made by the High Court are reproduced hereinbelow:
“5. The undisputed facts reveals that the petitioner, along with
other legal heirs of Jameela Beevi, were impleaded after due
enquiry under Order I Rule 10 (2) of CPC. No objection was
raised by the petitioner at that stage and the order by which he
was impleaded as the additional 8th respondent has become
final. Hence, the interlocutory application filed thereafter,
seeking deletion of petitioner's name from the party array, is
barred by res judicata.

6. The contention of the petitioner that he is having
independent possession over the property was rightly rejected
by the trial court, petitioner having failed to raise such
contention earlier or even in I.A.No.669 of 2009, filed by his
own siblings. Circumstances being as above, I am constrained
to hold that the attempt of the petitioner is to delay the
consideration in I.A.No.2548 of 2003 filed by the first
respondent, seeking execution of the sale deed through court.”
23. In such circumstances referred to above, the appellant-original defendant
has come up before us with the present appeal.
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B. SUBMISSIONS ON BEHALF OF THE APPELLANT
24. Mr. V. Chitambaresh, the learned Senior Counsel, appearing for the
appellant, vehemently submitted that the High Court committed a grave
error in taking the view that as the impleadment of legal heirs under Order
I Rule 10(2) of the CPC was not objected to by the appellant at the
appropriate stage, the subsequent application filed by the appellant for
deletion of his name would be barred by virtue of the doctrine of res
judicata .
25. The learned counsel submitted that in the instant case, since the relief of
possession was not granted in O.S No. 617 of 1996 while decreeing the
suit for specific performance, the decree got fully satisfied upon execution
of the sale deed. The counsel placed reliance on the judgment of this Court
in Birma Devi & Ors v. Subhash & Anr. , reported in 2024 SCC Online
SC 3676 , wherein it was held that relief of possession must be specifically
sought when the suit property is in possession of a third party. He also
referred to the decision in P.C. Varghese v. Devaki Amma Balambika
Devi reported in (2005) 8 SCC 486 wherein this Court held that Section 22
of the SRA, 1963 enacts a rule of pleading to avoid multiplicity of
proceedings.
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26. The learned counsel further argued that Section 11 of the Kerala Buildings
(Lease and Rent Control) Act, 1965, contains a non obstante clause
restricting eviction except in accordance with the provisions of the said
Act. Therefore, before ordering delivery of possession, the status of the
appellant as a tenant must necessarily be adjudicated.
27. Relying on the decision of this Court in B. Bal Reddy v. Teegala
Narayana Reddy reported in (2016) 15 SCC 102 , the counsel submitted
that the interest of a protected tenant continues to be operative and
subsisting so long as the protected tenancy is not validly terminated.
28. The learned counsel pointed out that the father of the appellant, Late
Shahul Hameed, was a tenant in the suit property since the year 1969, and
the assignment deed No. 2805/1976 acknowledges his tenancy, which
continued with the appellant as his legal heir. Further, in 1992,
Municipality License No. 215/92-93 was also issued in the name of the
father of the appellant. He contended that the Municipality License No.
PH2-27607/11 was thereafter issued in the name of the appellant on
16.04.2011 thereby showing the exclusive possession of the appellant on
the suit property owing to the tenancy.
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29. It was also contended that under the Mohammedan Law, the legal heirs of
a pre-deceased son are not the legal heirs of their grandmother, who in the
instant case was the original defendant and the judgment debtor. The
doctrine of representation does not apply under the Mohammedan Law.
The sale deed also indicates that the property was individually owned by
Jameela Beevi, and the descendant of her pre-deceased son would have no
legal claim. As a sequitur, the tenancy rights of the appellant cannot be
adjudicated and decided upon by impleading him as a legal heir.
30. The learned counsel stressed that an order allowing impleadment under
Order I Rule 10(2) of the CPC is merely a summary procedure and cannot
operate as res judicata . Placing reliance on the decision in Mumbai
International Airport (P) Ltd. v. Regency Convention Centre & Hotels
(P) Ltd. reported in (2010) 7 SCC 417 , he submitted that this Court in the
said decision held that the courts retain the power to strike out parties at
any stage of the proceeding under Order I Rule 10(2) of the CPC.
31. The learned counsel also referred to the decision in Ramankutty Guptan
v. Avara reported in (1994) 2 SCC 642 , wherein this Court held that
jurisdiction of the court does not cease after passing a decree for specific
performance, and the court retains control over the decree. He also
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submitted that the appellant has no role in the application filed for the
recission of contract.
32. In such circumstances referred to above, the learned counsel prayed that
there being merit in his appeal, the same may be allowed.

C. SUBMISSIONS ON BEHALF OF THE RESPONDENT
33. Mr. Mukund P. Unny, the learned counsel appearing for respondent no.1,
vehemently submitted that the present appeal has been filed solely with a
view to delay the execution of the decree, despite the fact that the
judgment and decree dated 17.03.2003 in favor of respondent no.1 attained
finality after dismissal of the SLP(C) No. 18880 of 2008 arising therefrom
on 13.08.2008. He emphasised that the respondent no.1 has not been able
to obtain possession of the suit property and thereby reap the fruits of the
decree in his favour due to persistent attempts by the appellant to stall
execution proceedings.
34. The learned counsel referred to the findings of the High Court in the
impugned order wherein the challenge by the appellant to the dismissal of
IA No. 2348 of 2012 seeking deletion of the appellant from the party array
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was rejected. He argued that the key finding of the High Court is that the
impleadment under Order I Rule 10(2) of the CPC had already attained
finality and that the belated attempt by the appellant to question the same
was barred by res judicata .
35. The learned counsel also brought to our attention the observations made by
the Trial Court while dismissing the IA No. 2348 of 2012 in OS No. 617 of
1996. He submitted that the Trial Court took note of the following:
a. The appellant had ample opportunity in prior proceedings to object to
his impleadment but failed to do so.
b. The appellant, rather than raising an objection to his impleadment,
participated in the proceedings, including the application to rescind
the contract.
c. The appellant through various frivolous petitions was seeking to delay
the execution of the decree dated 17.03.2003.
36. On the aspect of tenancy rights of the appellant in the suit property, the
learned counsel submitted that the claim of tenancy in the suit property
inherited from the father of the appellant is devoid of merit. He argued that
the tenancy arrangement mentioned in the 1976 sale deed by which
Jameela Beevi purchased the suit property, was not carried forward in the
sale agreement of 1996, to which the appellant himself was a witness. The
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learned counsel emphasized that there is no documentary evidence, much
less any other evidence, to support the claim of tenancy raised by the
appellant.
37. On the aspect of tenancy, he submitted that unlike the assignment deed of
1976, the agreement to sell of 1996 did not contain any clause conferring
or transferring the right to deal with tenants to the proposed buyer. He
argued that such omission indicates that the tenancy rights did not carry
forward after the death of the father of the appellant.
38. The learned counsel pointed out that the suit for specific performance was
decreed in OS No. 617 of 1996, and the execution proceedings were
initiated thereafter. Despite the decree being affirmed right upto this Court,
the appellant and his family have been repeatedly filing interlocutory
applications to delay the execution. He pointed out that IA No. 669 of
2009, seeking rescission of the contract, was dismissed by the Trial Court,
and the dismissal was affirmed by the High Court in CRP No. 233 of 2012.
39. The learned counsel pointed out that the High Court, in the impugned
judgment, upheld the findings of the Trial Court, rejected the claims of the
appellant and reaffirmed the impleadment under Order I Rule 10(2). The
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High Court also observed that the contention of the appellant regarding
tenancy was baseless and did not warrant interference.
40. The learned counsel submitted that the sale deed has already been
executed on 22.11.2022 at the instance of the Trial Court. However, the
appellant has locked the premises, preventing the original plaintiff from
obtaining actual possession. In view of this, he argued that the present
appeal is infructuous as it seeks relief that is no longer relevant.
41. In such circumstances, the learned counsel prayed that there being no
merit in this appeal, the same deserved to be dismissed with costs.
D. ISSUES FOR CONSIDERATION
42. Having heard the learned counsel appearing for the parties and having
gone through the materials on record, the following questions fall for our
consideration:
a. Whether the High Court committed any error in rejecting the original
petition filed by the appellant on the ground that the I.A. for deletion
of name of the appellant from the array of parties was barred by res
judicata ?
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b. Whether the appellant is entitled to the benefit of Section 11 of the
Kerala Buildings (Lease and Rent Control) Act, 1965?
c. Whether in the facts of this case the transfer of possession of the suit
property was implicit in the decree of specific performance in the
facts of the case?
E. ANALYSIS
43. Order I Rule 10 inter alia empowers the court to allow addition,
substitution or deletion of a party to a suit at any stage of the proceedings.
It reads as follows:
“ 10. Suit in name of wrong plaintiff.—
(1) Where a suit has been instituted in the name of the wrong
person as plaintiff or where it is doubtful whether it has been
instituted in the name of the right plaintiff, the Court may at
any stage of the suit, if satisfied that the suit has been instituted
through a bona fide mistake, and that it is necessary for the
determination of the real matter in dispute so to do, order any
other person to be substituted or added as plaintiff upon such
terms as the Court thinks just.
(2) Court may strike out or add parties.—
The Court may at any stage of the proceedings, either upon or
without the application of either party, and on such terms as
may appear to the Court to be just, order that the name of any
party improperly joined, whether as plaintiff or defendant, be
struck out, and that the name of any person who ought to have
been joined, whether as plaintiff or defendant, or whose
presence before the Court may be necessary in order to enable
the Court effectually and completely to adjudicate upon and
settle all the questions involved in the suit, be added.
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(3) No person shall be added as a plaintiff suing without a next
friend or as the next friend of a plaintiff under any disability
without his consent.
(4) Where defendant added, plaint to be amended.—
Where a defendant is added, the plaint shall, unless the Court
otherwise directs, be amended in such manner as may be
necessary, and amended copies of the summons and of the
plaint shall be served on the new defendant and, if the Court
thinks fit, on the original defendant
(5) Subject to the provisions of the 1 [Indian Limitation Act,
1877 (XV of 1877)], section 22, the proceedings as against any
person added as defendant shall be deemed to have begun only
on the service of the summons.”
44. For the purpose of answering the pivotal question at hand, we only need to
refer to Sub-rules (2) of Order I Rule 10. A bare reading of the provision
extracted above indicates that Sub-rule (2) vests a very broad and
substantial power in the court to delete or add a party, at any stage of the
suit proceedings, either suo motu or upon an application of either of the
parties before it. It provides that the court may delete the name of a party
on such terms as may appear to the court to be just and proper. It may add
any party whose presence before the court is necessary for the effective
and complete adjudication and settlement of all the questions involved in
the suit.
45. The power to strike out or add parties under Sub-rule (2) can be exercised
by the court on an application made by the parties before it, or upon an
application by a third party who desires to be added as a party, or even suo
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motu . Explaining the object underlying Order I Rule 10, this Court in
Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay
reported in (1992) 2 SCC 524 observed thus:
“6. Sub-rule (2) of Rule 10 gives a wide discretion to the Court
to meet every case of defect of parties and is not affected by the
inaction of the plaintiff to bring the necessary parties on
record. The question of impleadment of a party has to be
decided on the touchstone of Order 1 Rule 10 which provides
that only a necessary or a proper party may be added. A
necessary party is one without whom no order can be made
effectively. A proper party is one in whose absence an effective
order can be made but whose presence is necessary for a
complete and final decision on the question involved in the
proceeding. The addition of parties is generally not a question
of initial jurisdiction of the Court but of a judicial discretion
which has to be exercised in view of all the facts and
circumstances of a particular case.
xxx xxx xxx
8. The case really turns on the true construction of the rule in
particular the meaning of the words “whose presence before
the Court may be necessary in order to enable the Court
effectually and completely to adjudicate upon and settle all the
questions involved in the suit”. The Court is empowered to join
a person whose presence is necessary for the prescribed
purpose and cannot under the rule direct the addition of a
person whose presence is not necessary for that purpose. If the
intervener has a cause of action against the plaintiff relating to
the subject matter of the existing action, the Court has power to
join the intervener so as to give effect to the primary object of
the order which is to avoid multiplicity of actions.
xxx xxx xxx
10. The power of the Court to add parties under Order 1 Rule
10, CPC, came up for consideration before this Court in Razia
Begum [1959 SCR 1111 : AIR 1958 SC 886]. In that case it was
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pointed out that the courts in India have not treated the matter
of addition of parties as raising any question of the initial
jurisdiction of the Court and that it is firmly established as a
result of judicial decisions that in order that a person may be
added as a party to a suit, he should have a direct interest in
the subject matter of the litigation whether it be the questions
relating to movable or immovable property.
xxx xxx xxx
14. It cannot be said that the main object of the rule is to
prevent multiplicity of actions though it may incidentally have
that effect. But that appears to be a desirable consequence of
the rule rather than its main objective. The person to be joined
must be one whose presence is necessary as a party. What
makes a person a necessary party is not merely that he has
relevant evidence to give on some of the questions involved;
that would only make him a necessary witness. It is not merely
that he has an interest in the correct solution of some question
involved and has thought of relevant arguments to advance.
The only reason which makes it necessary to make a person a
party to an action is so that he should be bound by the result of
the action and the question to be settled, therefore, must be a
question in the action which cannot be effectually and
completely settled unless he is a party. The line has been drawn
on a wider construction of the rule between the direct interest
or the legal interest and commercial interest. It is, therefore,
necessary that the person must be directly or legally interested
in the action in the answer, i.e., he can say that the litigation
may lead to a result which will affect him legally that is by
curtailing his legal rights. It is difficult to say that the rule
contemplates joining as a defendant a person whose only object
is to prosecute his own cause of action. Similar provision was
considered in Amon v. Raphael Tuck & Sons Ltd. [(1956) 1 All
ER 273 : (1956) 1 QB 357], wherein after quoting the
observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie
S.A. v. Bank of England [(1950) 2 All ER 605, 611], that their
true test lies not so much in an analysis of what are the
constituents of the applicants' rights, but rather in what would
be the result on the subject matter of the action if those rights
could be established, Devlin, J. has stated:
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“The test is ‘May the order for which the plaintiff is
asking directly affect the intervener in the enjoyment of
his legal rights’.””
(Emphasis supplied)
46. In the present case, the appellant, along with other legal heirs of the
original defendant came to be impleaded in the execution proceedings
before the Trial Court as the original defendant passed away during the
pendency of the execution proceedings. Impleadment of the legal heirs of
a defendant who passes away during the pendency of suit proceedings is
governed by Order XXII Rule 4. The same reads as under:
“ 4. Procedure in case of death of one of several defentlants 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 defendants to be made a party
and shall proceed with the suit.
(2) Any person so made a party may make 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
SLP (C) No. 4307 of 2022 Page 22 of 38

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 therefore 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 with 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.”
47. It is important to note the Sub-rule (2) of the Rule (4) as extracted above.
The said Sub-rule provides that any party which is sought to be impleaded
as a legal heir of a deceased defendant is at liberty to take up any defence
as regards his character as the legal representative of the deceased
defendant.
48. Rule 5 of Order XXII is of importance in the facts of this litigation. It
reads thus:
“ 5. Determination of question as to legal representative.—
Where a question arises as to whether any person is or is not
the legal representative of a deceased plaintiff or a deceased
defendant, such question shall be determined by the Court:
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Provided that where such question arises before an Appellate
Court, that Court may, before determining the question, direct
any subordinate Court to try the question and to return the
records together with evidence, if any, recorded at such trial, its
findings and reasons therefor, and the Appellate Court may take
the same into consideration in determining the question.”
49. A perusal of the extracted provision indicates that if a question arises as
regards whether any person is or is not the legal representative of a
deceased defendant then such a question shall be determined by the court.
50. As we have discussed in the preceding parts of this judgment, the Trial
Court, while dismissing the application moved by the appellant under
Order I Rule 10, observed in clear terms that the appellant had the
opportunity of contesting his impleadment as the legal heir of the original
defendant when the application for impleadment and amendment of plaint
was moved by the original plaintiff. The Trial Court has also noted that the
appellant was not only served with the notice of the impleadment
application, but he also entered appearance. However, the appellant, for
reasons best known to him, chose to remain silent for more than four years
and did not raise any objections as regards his status of not being a legal
heir of the original defendant.
51. The position of law is well settled that the power to strike out or add a
party to the proceedings under Order I Rule 10 can be exercised by the
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court at any stage of the proceeding. However, the same cannot be
construed to mean that when a particular party has been impleaded as a
legal heir under Order XXII Rule 4 after due inquiry by the court and
without any objections, the party can approach the court anytime later and
seek his deletion from the array of parties by filing an application under
Order I Rule 10. If at all the appellant was aggrieved by his impleadment
as a legal heir, the suitable course of action was to first object to his
impleadment under Sub-rule (2) of Order XXII Rule 4. Even then if the
Trial Court would have decided against the appellant, it would have been
open to him to approach the High Court by filing a revision application
against the order of impleadment. However, the appellant chose to sit tight
in the impleadment proceedings despite entering appearance. He was also
a respondent in the application preferred by some of the legal heirs under
Section 28 of the SRA seeking rescission of the contract, both before the
Trial Court and later before the High Court in the revision preferred
against the rejection of the said application. However, he chose not to raise
any objection in either of these proceedings as well.
52. The timing of the application preferred by the appellant also raises serious
doubts as regards his bona fides . While the appellant remained silent over
his objections as regards tenancy and impleadment as legal heir from 2008
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till the rejection of the revision preferred by some of the legal heirs against
the rejection of the application for rescission of the contract, he filed the
application under Order I Rule 10 for the deletion of his name from the
array of parties within a month of the said revision petition. This, when
seen in the context of the delays caused by multiple applications preferred
by the appellant and the other legal heirs of the original defendant, only
goes on to lend credence to the allegation of the original plaintiff that the
application for deletion from array of parties is merely one more attempt to
further thwart and prolong what has already been an unduly protracted
litigation for the original plaintiff. Furthermore, while the appellant raised
no objection to the application for rescinding the contract either before the
Trial Court or the High Court despite being a respondent in both the
proceedings, it has been submitted by the counsel appearing on his behalf
that the said proceedings were not being undertaken with the approval of
the appellant. It is not possible for us to accept such a contention at this
stage of the proceedings having regard to the conduct exhibited by the
appellant.
53. The High Court, in its impugned order, held the application of the
appellant under Order I Rule 10 to be barred by res judicata and thus not
maintainable on that ground. We find no infirmity in the said observation
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mad by the High Court. This Court in Bhanu Kumar Jain v. Archana
Kumar reported in (2005) 1 SCC 787 observed that the principles of res
judicata apply not only to two different proceedings but also to different
stages of the same proceeding as well. The relevant observations are
reproduced hereinbelow:

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54. Thus, as the dictum of the law as extracted aforesaid indicates, the only
manner in which a decision arrived at by a court of competent jurisdiction
can be interfered with is by modification or reversal by the appellate
authorities. In the present case, the order for impleadment of the appellant
as a legal heir was made by the Trial Court after due inquiry under Order
XXII, as also observed by the Trial Court in its order rejecting the
application under Order I Rule 10. Evidently, neither any objection was
raised by the appellant before the Trial Court nor any revision was
preferred subsequently against the said order. Thus, it could be said that
the issue as regards the impleadment of the appellant as a legal heir of the
original defendant had attained finality between the parties and thus the
subsequent application under Order I Rule 10 seeking to get his name
deleted from the array of parties could be said to be barred by res judicata .
Undoubtedly, the expression “at any stage of the proceedings” used in
Order I Rule 10 allows the court to exercise its power at any stage,
however the same cannot be construed to mean that the defendant can
keep reagitating the same objection at different stages of the same
proceeding, when the issue has been determined conclusively at a previous
stage. Allowing the same would run contrary to the considerations of fair
SLP (C) No. 4307 of 2022 Page 28 of 38

play and justice and would amount to keeping the parties in a state of
limbo as regards the adjudication of the disputes.
55. This Court in the case of Satyadhyan Ghosal v. Deorajin Debi reported in
[1960] 3 SCR 590 , has noted that the principle of res judicata is essential
in giving a finality to judicial decisions. The relevant observations are
reproduced hereinbelow:
“The principle of res judicata is based on the need of giving a
finality to judicial decisions. What it says is that once a res is
judicata, it shall not be adjudged again. Primarily it applies as
between past litigation and future litigation. When a matter —
whether on a question of fact or a question of law — has been
decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a
higher court or because the appeal was dismissed, or no appeal
lies, neither party will be allowed in a future suit or proceeding
between the same parties to canvass the matter again. This
principle of res judicata is embodied in relation to suits in
Section 11 of the Code of Civil Procedure; but even where
Section 11 does not apply, the principle of res judicata has been
applied by courts for the purpose of achieving finality in
litigation. The result of this is that the original court as well as
any higher court must in any future litigation proceed on the
basis that the previous decision was correct. The principle of
res judicata applies also as between two stages in the same
litigation to this 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 same proceedings. …”
(Emphasis supplied)
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56. This Court in S. Ramachandra Rao v. S. Nagabhushana Rao reported in
2022 SCC OnLine SC 1460 observed that although a decision may be
erroneous, yet it would bind the parties to the same litigation and
concerning the same issue, if it is rendered by a court of competent
jurisdiction. The observations read thus:
“31. For what has been noticed and discussed in the preceding
paragraphs, it remains hardly a matter of doubt that the
doctrine of res judicata is fundamental to every well regulated
system of jurisprudence, for being founded on the consideration
of public policy that a judicial decision must be accepted as
correct and that no person should be vexed twice with the same
kind of litigation. This doctrine of res judicata is attracted not
only in separate subsequent proceedings but also at the
subsequent stage of the same proceedings. Moreover, a binding
decision cannot lightly be ignored and even an erroneous
decision remains binding on the parties to the same litigation
and concerning the same issue, if rendered by a Court of
competent jurisdiction. Such a binding decision cannot be
ignored even on the principle of per incuriam because that
principle applies to the precedents and not to the doctrine of res
judicata.”
57. A five-Judge Bench of the Calcutta High Court in Tarini Charan
Bhattacharya v. Kedar Nath Haldar reported in 1928 SCC OnLine Cal
172 considered the question as regards whether an erroneous decision on a
point of law would operate as res judicata between the parties or not. The
court inter alia observed that it is not always open to the party to raise a
point of law. It further held that Section 11 of the CPC makes the decision
of the court conclusive between the parties notwithstanding the reasoning
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employed by the court in arriving at the said decision. The relevant
observations are as under:
“(1) The question whether a decision is correct or erroneous
has no bearing upon the question Whether it operates or does
not operate as res judicata. The doctrine is that in certain
circumstances the Court shall not try a suit or issue but shall
deal with the matter on the footing that it is a matter no longer
open to contest by reason of a previous decision. In these
circumstances it must necessarily be wrong for a Court to try
the suit or issue, come to its own conclusion thereon, consider
whether the previous decision is right and give effect to it or
not according as it conceives the previous decision to be right
or wrong. To say, as a result of such disorderly procedure, that
the previous decision was wrong and that it was wrong on a
point of law/or on a pure point of law, and that therefore it may
be disregarded, is an indefensible form of reasoning. For this
purpose, it is not true that a point of law is always open to a
party.
(2) In India, at all events, a party who takes a plea of res
judicata has to show that the matter directly and substantially
in issue has been directly and substantially in issue in the
former suit and also that it has been heard and finally decided.
This phrase “matter directly and substantially in issue” has to
be given a sensible and businesslike meaning, particularly in
view of Expl. 4 to sec. 11 of the Code of Civil Procedure which
contains the expression “grounds of defence or attack.” Sec. 11
of the Code says nothing about causes of action, a phrase
which always requires careful handling. Nor does the section
say anything about point or points of law, or pure points of law.
As a rule parties do not join issue upon academic or abstract
questions but upon matters of importance to themselves. The
section requires that the doctrine be restricted to matters in
issue and of these to matters which are directly as well as
substantially in issue.
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(3) Questions of law are of all kinds and cannot be dealt with
as though they were all the same. Questions of procedure,
questions affecting jurisdiction, questions of limitation, may all
be questions of law. In such questions the rights, of parties are
not the only matter for consideration. The Court and the public
have an interest. When a plea of res judicata is raised with
reference to such matters, it is at least a question whether
special considerations do not apply.
(4) In any case in which it is found that the matter directly and
substantially in issue has been directly and substantially in
issue in the former suit and has been heard and finally decided
by such Court, the principle of res judicata is not to be ignored
merely on the ground that the reasoning, whether in law or
otherwise, of the previous decision can be attacked on a
particular point. On the other hand it is plain from the terms of
sec. 11 of the Code that what is made conclusive between the
parties is the decision of the Court and that the reasoning of the
Court is not necessarily the same thing as its decision. The
object of the doctrine of res judicata is not to fasten upon
parties special principles of law as applicable to them inter se,
but to ascertain their rights and the facts upon which these
rights directly and substantially depend; and to prevent this
ascertainment from becoming nugatory by precluding the
parties from re-opening or recontesting that which has been
finally decided.”
(Emphasis supplied)
58. We are aware of the decision of this Court in Pankajbhai Rameshbhai
Zalavadiya v. Jethabhai Kalabhai Zalavadiya reported in (2017) 9 SCC
700 wherein it was held that an application under Order I Rule 10 would
not be liable to be rejected solely on the ground that an application under
Order XXII Rule 4 had been found to not be maintainable. However, the
facts before us are quite different from the facts before the Court in
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Jethabhai (supra) . Therein, the subsequent application under Order I Rule
10 was allowed on the ground that the initial application under Order XXII
Rule 4 was filed under a mistake of law and fact as the defendant had
passed away prior to the institution of the suit, whereas order XXII Rule 4
only contemplates a situation wherein the defendant passes away during
the pendency of the proceedings. Thus, in such a scenario, it was observed
that the appropriate application would be under Order I Rule 10. However,
in the present case, the appropriate remedy for the appellant lay in raising
an objection under Sub-rule (2) of Rule (4) of Order XXII at the time of
the impleadment and not under Order I Rule 10 four years after the
impleadment came to be allowed.
59. In lieu of the aforesaid discussion, although it is immaterial for us to
examine the contention of the appellant that Mohammedan law does not
accord the son of a predeceased son the status of a legal heir of the
grandfather by virtue of inapplicability of the doctrine of representation,
yet we may refer to the observations of the Privy Council in the case of
Moolla Cassim bin Moolla Ahmed v. Moolla Abdul Rahim reported in
1905 SCC OnLine PC 17 wherein it was observed thus:
“It is a well-known principle of Mahomedan law that if any of
the children of a man die before the opening of the succession
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to his estate, leaving children behind, these grandchildren are
entirely excluded from the inheritance by their uncles and
aunts. […]”
60. Thus, had the appellant taken up the objection at the right stage of the
proceedings, it would have been open to the court to look into the said
objection under Order XXII Rule 5 and disallow his impleadment as a
legal heir of the original defendant. However, having failed to act at the
appropriate stage, it was not open to the appellant to subsequently
approach the court with an application under Order I Rule 10. Further, as
we shall shortly discuss, the appellant having failed to raise the plea of his
tenancy and possession over the suit property, the rejection of his
application under Order I Rule 10 has no material effect on the ultimate
outcome of the lis .
61. The appellant also contended before the Trial Court as well as the High
Court that he is a tenant in the suit property by virtue of having inherited
the tenancy from his deceased father in 1992. Thus, he enjoys the
protection of Section 11 of the Kerala Buildings (Lease and Rent Control)
Act, 1965 which provides that a tenant cannot be evicted, even in
execution of a decree, except in accordance with the procedure prescribed
under the said Act. However, the said contention of the appellant was
rejected by both the courts and in our opinion, rightly so.
SLP (C) No. 4307 of 2022 Page 34 of 38

62. The appellant has relied on the assignment deed of the year 1976 and the
License No. 215/92-93 issued by the Palakkad Municipality under Section
204 of the Kerala Municipality Act, 1960 to contend that his deceased
father was a tenant in the suit property prior to his demise in 1992. He has
also relied upon the Municipality License No. PH2-27607/11 issued in his
name on 16.04.2011 to contend that he enjoys the exclusive possession of
the suit property owing to the tenancy. However, we are of the view that
the same is merely one more weapon from the arsenal of dubious tactics
employed by the appellant in collusion with the other legal heirs of the
original defendant to protract the execution proceedings.
63. While it may be true that the deceased father of the appellant was a tenant
in the suit property at the time the same was purchased by the original
defendant in the year 1976 and that he continued as a tenant till his demise
in 1992, however we are of the view that the appellant has failed to
establish his tenancy or possession over the suit property for the following
reasons:
a. The appellant is one of the witnesses to the agreement to sell entered
into between the original plaintiff and the original defendant in the
year 1996.
SLP (C) No. 4307 of 2022 Page 35 of 38

b. There is no clause or recital as regards the tenancy of the appellant in
the agreement to sell unlike the assignment deed of the year 1976.
c. The appellant did not raise any objection in any of the proceedings on
the ground of tenancy until the application filed by him in 2012 from
which the present proceedings arise.
d. The appellant has failed to produce any documents indicating his
tenancy or exclusive possession over the suit property from the time
of the execution of the agreement to sell upto the filing of the
execution application by the original plaintiff.
e. The Municipality license of 2011 has been issued long after the suit
was decreed in the favor of the original plaintiff and during the
pendency of the execution proceedings.
f. Both the courts below have recorded concurrent findings rejecting the
claim of tenancy and exclusive possession over the suit property by
the appellant.
64. Before we part with the matter, we deem it appropriate to briefly address
the contention of the appellant that in the absence of decree granting
possession to the original plaintiff, the decree gets satisfied with the
SLP (C) No. 4307 of 2022 Page 36 of 38

execution of the sale deed and the original plaintiff is not entitled to seek
possession over the suit property. The position of law is settled on this
aspect and has been reiterated by us in our recent decision in Rohit
Kochhar v. Vipul Infrastructure Developers Ltd. reported in 2024 SCC
OnLine SC 3584 . In the said decision, relying on the decision of this
Court in Babu Lal v. Hazari Lal Kishori Lal reported in (1982) 3 SCR 94 ,
it was observed thus:
“23. This Court in Babu Lal (supra), upon a combined reading
of Sections 22 and 28(3) of the Specific Relief Act respectively
and Section 55 of the Transfer of Property Act, observed that
the it was only “in an appropriate case” that the plaintiff was
required to separately seek the relief of possession, partition, or
separate possession, as the case may be, along with the relief of
specific performance. The Court observed that in other cases,
say for example a case where the exclusive possession of the
suit property is with the contracting party, a decree for specific
performance of the contract of sale simpliciter, without
specifically providing for delivery of possession, may give
complete relief to the decree-holder. This, the Court observed,
was the mandate flowing from Section 55 of the Transfer of
Property Act. […]”
(Emphasis supplied)
65. Thus, as in the present case, both the courts below have arrived at the
conclusion that the exclusive possession of the suit property could be said
to be with the original defendant when the suit was decreed, the relief of
transfer of possession is implicit in the decree for specific performance
directing the original defendant to execute a sale deed in the favour of the
SLP (C) No. 4307 of 2022 Page 37 of 38

original plaintiff. For the same reason, the decision of this Court in Birma
Devi (supra) is of no avail to the appellant.
66. It has been brought to our knowledge that during the pendency of the
present petition, a sale deed has already been executed in the favour of the
original plaintiff by the legal heirs of the original defendant, however the
possession has not yet been granted.
F. CONCLUSION
67. In light of the aforesaid discussion, we are of the view that the High Court,
as well as the Trial Court, committed no error, much less any error of law,
in arriving at their respective decisions. As a result, the appeal fails and is,
hereby, dismissed with costs of Rs 25,000/- to be paid by the appellant and
deposited with the Supreme Court Legal Services Committee within a
period of two weeks from today.
68. The sale deed having already been executed in favour of the respondent
no. 1, the Executing Court shall now proceed to ensure that vacant and
peaceful possession of the suit property is handed over to the respondent
no.1 in his capacity as the decree holder as well as the title holder of the
suit property and, if necessary, with the aid of police. This exercise shall be
completed within a period of two months from today without fail.
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69. Pending application(s), if any, shall also stand disposed of.

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