A. K. SEN, M. N. RAO

( 1 ) THIS appeal arises out of a suit for specific performance of a contract of sale and raises a short but an important question for decision. The question so raised is as to whether such a suit abates on the death of the vendor defendant when his legal representative are not brought on record even though subsequent transferees from the vendor are already on record as parties defendants. The question so raised arises on the following facts.

( 2 ) ONE Kali Kinkar Chatterji (predecessor-in-interest of the present respondents) instituted the aforesaid suit for specific performance of a contract dated August 16, 1961 of sale against the vendor F. N. Gazdar in respect of premises No. 31, Benaras Road, Howrah (hereinafter referred to as the suit property ). While contesting the suit F. N. Gazdar sold the suit property on January 7, 1961 to two persons, Karamshi Walji Patel and Karsan Patel (hereinafter referred to as the Patels ). Patels on an application made by them had themselves added as parties' defendants in the suit.

( 3 ) PRINCIPAL defendants F. N. Gazdar died on April 7, 1964. On an application made on June 10, 1964, plaintiff Kali Kinkar substituted one S. N. Gazdar in place of the deceased defendant claiming him to be the nephew of the deceased. On an application made on July 7, 1964, the plaintiff brought on record one Amba Devi as in heir and legal representative of the deceased defendant on a claim that she is a sister of the deceased.

( 4 ) THEN followed a spate of applications on behalf of the plaintiff either for bringing on record further heirs and legal representatives in place of the deceased defendant or for amendment of the description of such heirs and legal representatives already brought on record. All these applications were opposed by the Patels who in their turn filed an application on January 5, 1965, for recording abatement of the suit on the death of the principal defendant.

( 5 ) ALL these applications were tried on evidence. The learned Judge in the court below found on evidence that S. N. Gazdar who alone was substituted within the period of limitation in place of deceased defendant was no real person and as such there was no substitution at all in time on the death of the principal defendant. On such a finding the learned Judge by an order dated March 1, 1967, recorded abatement of the suit as a whole. Of course in recording such an order of abatement the learned Judge did not expressly refer to the fact that the subsequent transferees from the principal defendant viz. , the Patels were already on record.

( 6 ) THEREAFTER the plaintiff filed an application for substitution by setting aside abatement but that application was not pressed and was dismissed. Then come the plaintiff with an application for review of the order recording abatement under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure on March 30, 1967.

( 7 ) PENDING this application for review, the plaintiff Kali Kinkar died and his heirs and legal representatives, the respondents in this appeal were brought on record by substitution. Patels in their turn sold the suit property to Chhotalal Hariram and Morarji Hariram (hereinafter referred to as Harirams) and they were added as parties for allowing them to contest the review application.

( 8 ) THE review application was heard on contest and was allowed by the successor-in-office of the learned Judge who had earlier recorded the abatement. According to the learned Judge, who allowed the review application, when under section 19 of the Specific Relief Act the contract is enforceable both against vendor and his transferees, the transferees being already on record the suit cannot abate as against the transferees and hence the suit cannot abate as a whole. He further held that the order recording abatement of the suit as a whole had been made on an apparent error of non-consideration of the fact that the transferees being on record the suit do

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