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SUPREME COURT OF INDIA
MANOJ MISRA, UJJAL BHUYAN, JJ.
Kishorilal (D) through LRs. and Others – Appellants
Versus
Gopal and Others – Respondents
Civil Appeal No. 172 of 2026 [SLP (C) No. 36787 of 2017], Civil Appeal No. 173 of 2026 [SLP (C) No. 397 of 2018]
Decided On : 12-01-2026
(A) Civil Procedure Code, 1908 – Section 11 – Res Judicata – Principle of res judicata applies also as between two stages in same litigation to the extent that a court, whether trial court or a higher court having at an earlier stage decided a matter in one way will not allow parties to re agitate the matter again at a subsequent stage of same proceedings – However, what is important is that this does not preclude appellate court or a higher court to test correctness of that decision. (Para 30)
(B) Civil Procedure Code, 1908 – Order I Rule 10 – Impleadment of necessary party – Vendor is a necessary party in a suit for specific performance of an agreement for sale, notwithstanding that vendor has transferred his interest in subject matter of agreement to a third party – Transferee/ third party cannot be subjected to special covenants between vendor and plaintiff-purchaser – Besides that, object of decree of specific performance is to put the person who has agreed to purchase property in same position which he would have obtained in case contracting parties i.e., vendor and purchaser had, pursuant to agreement, executed a deed of sale and completed it in every way – Though a transfer lis pendens is not always void, such transferee’s title is subservient to decree that may ultimately be passed in pending suit – As a sequitur, a transferee lis pendens is not a necessary party in a suit for specific performance – Suit or an appeal emanating from such a suit would abate if, upon death of vendor, his legal heirs/substituted. (Paras 36 and 38)
(C) Civil Procedure Code, 1908 – Order XXII Rules 1 and 2 – Substitution and abatement – Before declaring a suit or proceeding to have abated on ground of non-substitution of heirs/ legal representatives of a deceased party, Court must examine whether interest of deceased party qua subject matter of proceeding is sufficiently represented by other parties already on record – If interest of deceased party is sufficiently represented by other parties already on record, and decree/order eventually passed in suit or proceeding would not be rendered non-executable for absence of that party, suit or proceeding would not abate – There is clear distinction between non-substitution of legal representatives/legal heirs of a deceased party and non-substitution of one of heirs of a deceased party – In the latter, if interest of deceased party is sufficiently represented by other heirs/legal representatives on record, there will be no abatement. (Paras 38 and 40)
Facts of the case:
Following issues arise for 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 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?
(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?
Findings of Court:
In view of our conclusion that appeal had not abated, High Court had discretion to allow impleadment of Murarilal’s heirs and for such impleadment, it was not required to condone delay or to set aside abatement.
Result : Appeals allowed.
The legal document clarifies that the principle of res judicata applies to different stages within the same litigation, meaning that once a matter has been decided, it cannot be re-agitated in subsequent stages if it has already been conclusively determined (!) . It emphasizes that the non-substitution of heirs or legal representatives of a deceased party does not necessarily lead to abatement of the proceedings, provided that the interest of the deceased is sufficiently represented by other parties already on record (!) (!) (!) .
In particular, the document highlights that a mistake in deleting a party’s name from the record, which is subsequently rectified, does not constitute a ground for abatement if the interest of the deceased is otherwise adequately represented (!) (!) . Furthermore, the court has discretion to allow the impleadment of heirs or legal representatives at any stage, and such actions do not require condonation of delay if the appeal has not legally abated (!) (!) .
Overall, the conclusion is that the appeal in question was not abated due to non-substitution of certain heirs, and procedural errors such as clerical mistakes can be corrected without affecting the substantive rights of the parties. The courts have the authority to permit the addition of heirs or legal representatives and to continue proceedings, provided that the interests of the parties are sufficiently represented. Consequently, the orders dismissing the appeals as having abated are incorrect, and the appeals should be restored and decided on their merits.
JUDGMENT :
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 of 1992 which was instituted by Gopal (first respondent) against Kishorilal (i.e. first appellant (since deceased), who is now represented through his LRs.1 [Legal Representatives]) 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 Gwalior.2 [High Court] 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 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.”
[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 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 he
No cases in the provided list are explicitly identified as overruled, reversed, or otherwise treated as bad law. None of the entries contain language such as "overruled," "reversed," "abrogated," or "bad law."
Mithailal Dalsangar Singh VS Annabai Devram Kini - 2003 6 Supreme 796: Prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally and a simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. Bhanu Kumar Jain VS Archana Kumar - 2005 1 Supreme 102: Important pointWhen application u/O 9 R. 13 CPC is dismissed, defendant can only avail a remedy available thereagainst viz to prefer an appeal in terms of Order 43 Rule 1 CPC and once such an appeal is dismissed, appellant cannot raise same contention in First Appeal. Madhukar Nivrutti Jagtap VS Pramilabai Chandulal Parandekar - 2019 0 Supreme(SC) 850: Nature of the document has to be found out from the language of the document. Courts should not indulge in hair splitting. It is unwarranted.Party seeking specific relief is required to aver and prove that they were always ready and willing to perform their part of the contract.Transactions after filing of suit for specific performance are hit by doctrine of lis pendens.Decisions of subordinate courts suffering from perversity involve substantial questions of law and therefore second appeal will be maintainable.In a suit of specific performance when relief of specific performance is not feasible, relief can be moulded to grant adequate compensation. Shivshankara VS H. P. Vedavyasa Char - 2023 3 Supreme 228: Remand of matter – Order of remand has to be followed in its true spirit – Direction to trial Court for recording evidence and submitting it along with report will not efface evidence already on record or will not be having effect of setting aside of judgment and decree passed by trial Court.(2) No amount of proof offered without appropriate pleadings would have any relevance.(3) Doctrine of lis pendens – Right of successful party in litigation in regard to that property would not be affected by alienation, but it does not mean that as against transferor transaction is invalid.
Bishwanath Prasad, son of Late Nathuni Chaudhuri vs Dwarika Prasad Bhagat @ Dwarka Prasad Bhagat, son of Late Nathuni Chaudhuri - 2026 0 Supreme(Jhk) 439: For this, reference may be made to the judgement passed by the Hon’ble Supreme Court in the case of Kishorilal (D) through ... L.R and others versus Gopal and others in Civil Appeal No.172 of 2026 and 173 of 2026 reported in Bishwanath Prasad vs Dwarika Prasad Bhagat - 2026 Supreme(Online)(Jhk) 1088: For this, reference may be made to the judgement passed by the Hon’ble Supreme Court in the case of Kishorilal (D) through ... L.R and others versus Gopal and others in Civil Appeal No.172 of 2026 and 173 of 2026 reported in
Bishwanath Prasad, son of Late Nathuni Chaudhuri vs Dwarika Prasad Bhagat @ Dwarka Prasad Bhagat, son of Late Nathuni Chaudhuri - 2026 0 Supreme(Jhk) 439 and Bishwanath Prasad vs Dwarika Prasad Bhagat - 2026 Supreme(Online)(Jhk) 1088: These entries are identical and consist solely of a referential note directing the reader to a Supreme Court judgment (Kishorilal (D) through L.R and others vs Gopal and others, Civil Appeal No.172 of 2026 and 173 of 2026). They do not contain any analysis of judicial treatment, nor do they indicate whether the referenced case has been followed, distinguished, criticized, or otherwise treated. Their treatment category cannot be determined from the provided text.
**Source :** Bishwanath Prasad, son of Late Nathuni Chaudhuri vs Dwarika Prasad Bhagat @ Dwarka Prasad Bhagat, son of Late Nathuni Chaudhuri - Jharkhand Bishwanath Prasad vs Dwarika Prasad Bhagat - Jharkhand Mohammad Arif VS Allah Rabbul Alamin - Supreme Court Madhukar Nivrutti Jagtap VS Pramilabai Chandulal Parandekar - Supreme Court K. Naina Mohamed (Dead) through L. Rs. VS A. M. Vasudevan Chettiar (Dead) through L. Rs. - Supreme Court Mithailal Dalsangar Singh VS Annabai Devram Kini - Supreme Court Mahabir Prasad VS Jage Ram - Supreme Court R. C. Chandiok VS Chuni Lal Sabharwal - Supreme Court Satyadhyan Ghosal VS Deorajin Debi - Supreme Court Shivshankara VS H. P. Vedavyasa Char - Supreme Court Bhure Khan VS Yaseen Khan - Supreme Court Y. B. Patil VS Y. L. Patil - Supreme Court Dwarka Prasad Singh VS Harikant Prasad Singh - Supreme Court Durga Prasad VS Deep Chand - Supreme Court Bhanu Kumar Jain VS Archana Kumar - Supreme Court
(1) Res Judicata – Principle of res judicata applies also as between two stages in same litigation.(2) Impleadment of necessary party – Vendor is a necessary party in a suit for specific performance ....
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.
Abatement of appeal – Whole appeal will not abate in all cases.
The main legal point established in the judgment is that an appeal should not be abated in its entirety if an earlier order had already been passed abating the appeal only with respect to one party.
Rejection by the High Court of the applications to set aside abatement, condonation and brining on record the legal representatives does not appear, on the peculiar nature of the case, to be a just o....
In a suit for specific performance of a joint and indivisible contract, the death of one of the plaintiffs during the pendency of the suit abates the suit in its entirety if the legal representatives....
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