1. Suit for declaration and possession — First appellate court decreed suit — Second appeal filed by defendants — Death of co-appellant — Non-substitution of legal representatives — Appeal declared abated. (Para 2 , 3 )
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2025 Supreme(SC) 1090
SUPREME COURT OF INDIA
PAMIDIGHANTAM SRI NARASIMHA, MANOJ MISRA, JJ.
Suresh Chandra (Deceased) through LRs. and Others - Appellants
Versus
Parasram and Others - Respondents
Civil Appeal No. of 2025 [Arising Out of SLP (C) Nos. 15900-15902 of 2022]
Decided On : 18-07-2025
Advocates appeared:
For the Petitioner(s): Mr. Jayant Mehta, Sr. Adv. Mr. Puneet Jain, Sr. Adv. Ms. Christi Jain, AOR Mr. Mann Arora, Adv. Mr. Harsh Jain, Adv. Mr. Om Sudhir Vidyarthi, Adv. Ms. Akriti Sharma, Adv. Mr. Ojusya Joshi, Adv.
For the Respondent(s): Mr. N.K. Mody, Sr. Adv. Ms. Ishita M Puranik, Adv. Ms. Jigisha Agrawal, Adv. Mr. Suresh Kumar Bhan, Adv. Mr. Hari Sahteshwar, Adv. Mr. Praveen Swarup, AOR
For the Petitioner(s): Mr. Jayant Mehta, Sr. Adv. Mr. Puneet Jain, Sr. Adv. Ms. Christi Jain, AOR Mr. Mann Arora, Adv. Mr. Harsh Jain, Adv. Mr. Om Sudhir Vidyarthi, Adv. Ms. Akriti Sharma, Adv. Mr. Ojusya Joshi, Adv.
For the Respondent(s): Mr. N.K. Mody, Sr. Adv. Ms. Ishita M Puranik, Adv. Ms. Jigisha Agrawal, Adv. Mr. Suresh Kumar Bhan, Adv. Mr. Hari Sahteshwar, Adv. Mr. Praveen Swarup, AOR
The abatement of an appeal due to non-substitution of a deceased co-appellant leads to the entire appeal being dismissed if it involves a joint decree that may result in conflicting decisions.
Headnote:(A) Civil Procedure Code, 1908 - Order XXII Rule 3 and Order XLI Rule 4 - Appeal abatement - The High Court declared the second appeal abated for non-substitution of deceased co-appellant within time - Appeals were filed by legal representatives, seeking substitution and setting aside abatement - Court held that sufficient cause for delay was not established, and once a deceased party's appeal abates, the entire appeal becomes abated if the decree is indivisible between parties - Aggrieved parties claimed ownership of the property, leading to conflicting decrees if the appeal proceeded post-abatement. (Paras 8, 10, 26)
(B) Abatement - Joint decree - The appeals stemmed from a joint decree where both defendants claimed joint interest from a common ancestor - The abatement of the appeal due to one co-appellant's death rendered continuation impossible, leading to potential contradictory decrees. (Paras 19, 40)
Facts of the case:
The suit originated in 1983 for declaration and possession of property, with allegations of tenancy denied by defendants claiming ownership through partition. One defendant died, leading to issues of jurisdiction and representation in the appeal process.
Findings of Court:
The court upheld the High Court's decision on abatement, affirming that a consistent decree could not be maintained among surviving appellants post-abate of a deceased co-appellant.
Issues: 1) Whether the High Court erred in declaring the appeal abated; 2) Whether the entire appeal has abated as a result of non-substitution of LRs.
Ratio Decidendi: The court asserted that abatement of a co-appellant's appeal, due to their death, signifies the impossibility of maintaining a joint decree, thus necessitating the dismissal of the entire appeal to avoid conflicting decisions.
Result: Appeals dismissed.
Judgement Key Points
No.
The Supreme Court did not clarify that substitution and setting aside abatement are governed by a combined time frame under Order XXII CPC and the Limitation Act, nor did it link these to ensuring procedural compliance without defeating substantive justice. (!) (!) (!) (!)
Instead, the Court noted separate limitation periods: 90 days under Article 120 of the Limitation Act, 1963, for substitution (from the date of death on 19.08.2015) and 60 days under Article 121 for setting aside abatement, both expiring by January 2016. (!)
The Court upheld rejection of condonation applications filed in 2022 (after abatement declared on 21.02.2022), as no sufficient cause was shown despite death notice given on 04.04.2016 and familial ties implying knowledge. Power to condone under Order XXII Rule 9 exists but was not exercised here due to unexplained delay. (!) (!) (!) (!) (!)
Focus was on factual non-compliance leading to full abatement of the joint appeal, without broader procedural clarifications or justice-balancing rhetoric. (!) (!) (!) (!) (!)
Legal Category Hierarchy
Table of Contents
2. Whether the appeal abated partially or wholly — Applicability of Order XLI Rule 4 CPC — Whether sufficient cause existed for condoning delay in substituting legal representatives. (Para 6 , 7 )
3. Analysis of joint and indivisible decrees — Potential for contradictory decrees if appeal proceeds partially — Inapplicability of Order XLI Rule 4 to joint appeals — Lack of sufficient cause for delay. (Para 9 , 10 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 )
4. An appeal abates entirely if the decree is joint and indivisible, such that partial abatement would result in contradictory or mutually self-destructive decrees. (Para 14 , 17 , 25 , 37 )
5. Appeals dismissed — High Court's orders on delay condonation and total abatement of the second appeal upheld. (Para 38 , 39 )
6. When does an appeal abate entirely instead of partially due to non-substitution of legal representatives?
An appeal abates entirely if the decree is joint and indivisible, meaning the success of the appeal for surviving parties would result in contradictory or inconsistent decrees that are incapable of enforcement or mutually self-destructive. (Para 14 , 17 , 25 , 37 )
7. Does Order XLI Rule 4 of the CPC prevent the abatement of an appeal when a co-appellant dies?
No, if the appeal was filed jointly by all aggrieved parties. Order XLI Rule 4 applies when one party appeals against the whole decree on common grounds; it does not override Order XXII during the pendency of a joint appeal. (Para 28 , 31 )
8. What is the effect of non-substitution of legal representatives of a proforma respondent under Order XLI Rule 4?
If an appeal is filed by some parties impleading others as proforma respondents, the appeal does not abate upon the death of a proforma respondent, as the appellant can still seek relief under Order XLI Rule 4. (Para 30 , 31 )
9. What constitutes sufficient cause for condoning delay in setting aside abatement?
The court must be satisfied that the party was prevented by a genuine reason from continuing the suit. Ignorance of death may be considered, but failure to act despite knowledge and long delays generally preclude condonation. (Para 9 , 10 )
JUDGMENT :
MANOJ MISRA, J.
1. Leave granted.
2. These appeals arise from Civil Suit No. 13 of 1983 (renumbered 16A of 1997), which was dismissed by the trial court and decreed by the first appellate court. On second appeal1 [Second Appeal No. 446 of 2001] before the High Court2 [The High Court of Madhya Pradesh at Gwalior] by the impugned order dated 21.02.2022, the appeal of the appellants herein was declared to have abated due to non-substitution of the legal representatives (for short LRs) of Ram Babu (i.e. appellant no. 2 in the second appeal) within time. By the second impugned order dated 04.08.2022, the High Court rejected the applications3 [MCC No. 697 and MCC No. 700 of 2022] preferred for condonation of delay in applying to set aside abatement and for substitution of the LRs of deceased Ram Babu.
FACTS:
3. The facts relevant for deciding the present appeal are as follows:
(i) Suit No. 13 of 1983 (renumbered as 16A of 1997) was instituted against Suresh Chandra (predecessor-in-interest of the appellants herein) and Ram Babu by the respondent seeking declaration, recovery of possession, mesne profits in respect of a house.
(ii) Plaintiff claimed exclusive title over the suit property through its ancestor Tej Singh and pleaded that the defendants were his tenant.
(iii) Defendants i.e. Suresh Chandra and Ram Babu, filed a joint written statement in the suit.
(iv) Suresh Chandra died during the suit proceeding, his LRs, namely, the appellants, also filed their written statements.
(v) In the written statement, while denying the alleged tenancy, the defendants claimed title over the suit property through their ancestor late Gokul Prasad who, according to them, had derived exclusive interest in the suit property through a partition with his brothers in the year 1947.
(vi) The trial court dismissed the suit against which an appeal was preferred by the plaintiff.
(vii) The first appellate court decreed the suit of the plaintiff against which the LRs of Suresh Chandra and Ram Babu filed the second appeal.
(viii) During the pendency of the second appeal, appellant no. 2 (Ram Babu) died on 19.08.2015. Information of his death was given to the Court on 04.04.2016. However, his LRs were not brought on record within time.
(ix) The High Court vide first impugned order dated 21.02.2022 declared the appeal to have abated.
(x) To set aside abatement and to substitute the LRs of Ram Babu two set of applications were filed along with delay condonation applications. One set, namely, MCC No. 700 of 2022 was filed by the appellants (i.e. LRs of Suresh Chandra, who were already on record) and the other set, namely, MCC No. 697 of 2022 was filed by LRs of Ram Babu. Both were rejected by second impugned order dated 04.08.2022.
4. Aggrieved by the aforesaid orders, the appellants are before us.
5. We have heard Shri Jayant Mehta, learned Senior Counsel for the appellants; Shri N.K. Mody, learned Senior Counsel for the contesting respondent and have perused the record.
APPELLANTS’ SUBMISSIONS
6. The learned counsel for the appellants submitted that, on non-substitution of legal heirs of a dead co-appellant, to determine whether the appeal abated partially, or wholly, what needs to be examined first is whether the surviving appellant has an independent right to pursue the appeal. If yes, whether he could seek for reversal of the entire decree under appeal. If not, then whether the decree in favour of the surviving appellant would result in a decree contradictory or conflicting with the one qua the deceased party. According to him, the appellants’ (LRs of Suresh Chandra’s) right was independent of the deceased appellant (Ram Babu) and as under Order XLI Rule 44 [Order XLI Rule 4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all - Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the de
