The main legal point established in the judgment is that the suit for specific performance abates as a whole when the legal representatives of the deceased plaintiff are not brought on record within the prescribed time.

JUDGMENT - A.P. SHAH, J.:---The short question that arises in these two appeals is whether the suit for specific performance of the contract abates in its entirety when one of the plaintiffs being party to a joint, indivisible contract, dies and his heirs and legal representatives are not brought on record within the specified time and whether it is permissible for the heirs and legal representatives of such plaintiff to apply after several years to bring themselves on record and set aside the abatement of the suit only as against the deceased plaintiff.

2. The facts of the case in brief are as follows :

The present suit for specific performance was filed by the plaintiff Nos. 1 to 3 on the basis of an agreement of sale in respect of the immovable property described in Exhibit A to the plaint. During the pendency of the suit, plaintiff No. 1 died on 5-4-1997. The plaintiff Nos. 2 and 3 did not take any steps to bring the heirs and legal representatives of the deceased plaintiff on record. On 28-6-2000 a Chamber Summons was taken out by the heirs and legal representatives of the deceased plaintiff No. 1 for bringing them on record in place of plaintiff No. 1 and for setting aside the abatement of suit with regard to plaintiff No. 1. This chamber summons was addressed only to defendants. In the affidavit in support of the Chamber Summons it is claimed that the applicants came to know about the suit when they received a letter dated 17-6-2000 from the Advocate of the plaintiffs informing them about the suit and asking for names and addresses of the heirs and legal representatives of the deceased plaintiff No. 1. There is no explanation given about the failure on the part of the plaintiff Nos. 2 and 3 to bring the heirs and legal representatives on record within the prescribed time and their inaction for all these years inspite of the death of plaintiff No. 1.

3. The question involved is not a virgin one. There is a catena of decisions on the question of abatement on the death of a party. The question has to be resolved with reference to substantive law also.

4. In (State of Punjab v. Nathu Ram)1, A.I.R. 1962 S.C. 89, the State of Punjab had preferred an appeal to the High Court against the joint Award made in favour of two brothers Labhu Ram and Nathu Ram who were the co-respondents to the appeal. During the pendency of that appeal Labhu Ram died and his heirs were not brought on the record. The High Court held that the appeal had abated against Labhu Ram and the effect of such abatement was that the appeal against Nathu Ram also abated. Accordingly the High Court dismissed the appeal. The State moved the Supreme Court which upheld the decision of the High Court, Raghubar Dayal, J., speaking for the Supreme Court, laid down the principles applicable in the following words :

“The question whether a Court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the consideration which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the Court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent, (b) when the appellant could not have brought the action for the necessary relief against those respondents alone wh

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