An order allowing substitution implicitly includes setting aside abatement upon condonation of delay.

The appellants preferred a second appeal against a judgment affirming the dismissal of their suit seeking a declaration that a judgment and decree passed in an earlier suit between the parties was a nullity.

In the earlier suit, a gift deed in favour of appellant no. 1 and a sale deed in favour of appellant no. 2 had been set aside on the ground of fraud.

The appellants contended that the plaintiff in the earlier suit had died during its pendency and that the suit had consequently abated.

They argued that the subsequent substitution of the deceased plaintiff’s legal representatives was void because there had been no specific application or order for setting aside abatement and condoning delay.

They also challenged the finding that their remedy lay in an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (“CPC”), or in an appeal against the earlier decree.

The courts below had concurrently found that fraud and non-service of summons had not been established.

Whether the substitution order passed after the death of the plaintiff in the earlier suit was void because there was no specific order setting aside abatement or condoning delay.

Whether the appellants could maintain an independent suit challenging the earlier decree as a nullity on the grounds of fraud, non-service of summons, or abatement, instead of pursuing a remedy under Order IX Rule 13 CPC or by way of appeal.

Whether the concurrent findings of the courts below disclosed any substantial question of law warranting interference in second appeal.

The Court applied the CPC provisions governing abatement and substitution of parties, holding that an order allowing substitution necessarily and implicitly includes the setting aside of abatement and condonation of delay, since substitution could not otherwise validly occur.

A party aggrieved by such an order must challenge it in an appeal against the final decree in the earlier suit.

A decree allegedly obtained without service of summons or through fraud must ordinarily be challenged through the legally prescribed remedy, including an application under Order IX Rule 13 CPC or an appeal, rather than through a collateral suit.

The Court further applied the principle of res judicata, holding that the earlier decree operated against the appellants where no appropriate challenge had been preferred, particularly when fraud had not been proved.

Concurrent findings of fact ordinarily do not give rise to a substantial question of law in a second appeal.

The trial court’s finding regarding due service of summons also carried a presumption of correctness unless rebutted.

The Court held that the appellants’ challenge to the substitution order was untenable because the order allowing substitution necessarily carried with it the setting aside of abatement and condonation of delay.

If the appellants disputed that order, they were required to challenge its validity in an appeal against the final decree in the earlier suit; having failed to do so, they were precluded from reopening the decree on the ground of abatement.

Similarly, the allegations of fraud and non-service of summons had been rejected by concurrent findings of fact, and the appellants had not pursued the appropriate procedural remedies under Order IX Rule 13 CPC or by appeal.

Consequently, the earlier decree remained operative and constituted res judicata, and the appeal raised no substantial question of law.

The connected application, CAN 1 of 2026, was also dismissed, with no order as to costs.