Kishorilal (D) Thr. L.Rs vs Gopal

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 172 OF 2026 (@ SLP (C) No(s). 36787 of 2017)

KISHORILAL (D) THR. LRS & ORS. …APPELLANT (S)

VERSUS

GOPAL & ORS. …RESPONDENT (S)

WITH

CIVIL APPEAL NO. 173 OF 2026 (@ SLP (C) No(s). 397 of 2018)

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)

Signature Not Verified 2. This appeal arises from Original Suit No. 5A Digitally signed by CHETAN ARORA Date: 2026.01.12 16:06:05 IST Reason: of 1992 which was instituted by Gopal (first

Civil Appeal @ SLP (C) No.36787/2017 Page 1 of 43 respondent) against Kishorilal (i.e., first appellant

(since deceased), who is now represented through his

LRs1), 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

Gwalior2. 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

1 Legal Representatives 2 High Court

Civil Appeal @ SLP (C) 36787/2017 Page 2 of 43 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.”

Civil Appeal @ SLP (C) 36787/2017 Page 3 of 43 [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

Civil Appeal @ SLP (C) 36787/2017 Page 4 of 43 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 hearing in due course.”

After the aforesaid order was passed, on 14.03.2013

an application (IA No.1438/ 2013) was filed, under

Order 22 Rules 4 and 11 read with Order 1 Rule 10 of

the Code of Civil Procedure, 19083, to implead heirs of

Murarilal as respondents. On this application, an

objection was filed by the plaintiff-respondent.

However, the application was allowed vide order dated

03.05.2013, which is reproduced below:

“Heard on I.A. No. 1438/2013 which is an application under Order XXII Rule 4 and 11 C.P.C. and under Order I Rule 10 C.P.C. for 3 CPC Civil Appeal @ SLP (C) 36787/2017 Page 5 of 43 deleting the name of original appellant no.1 as he has sold the property to appellant no.2 and 3 and to bring the Legal Representatives of appellant no. 1(2) on record. Other Legal Representatives of appellant no.1 are on record, therefore, there is no abatement of appeal.

Let the necessary amendment be carried out within 7 days from today.

List the case for final hearing in Second Week of July, 2013.”

[Note: There appears some typographical error in this order as I.A. No.1438/2013 did not seek deletion of appellant no.1 rather it sought impleading the heirs of Murarilal as proforma respondents]

6. Thereafter, on 15.07.2017 an application was

filed by the appellants for setting aside abatement of

the appeal, if any, and for condoning the delay, if

any, in the interest of justice. To this application, on

20.07.2017 an objection was filed by the plaintiff-

respondent. While the aforesaid application was

pending, an application was filed for recall of the

order dated 09.05.2011 by which Kishorilal’s name

was erroneously deleted from the array of parties. To

Civil Appeal @ SLP (C) 36787/2017 Page 6 of 43 this application also, on 27.07.2017 an objection was

filed by the plaintiff-respondent.

7. By the impugned order dated 12.09.2017, the

High Court rejected the application of the appellants

to recall the order dated 09.05.2011 and held that on

deletion of Murarilal’s name from the array of parties,

the appeal had abated and, therefore, the appeal is

liable to be dismissed as having abated.

8. Aggrieved by the order of the High Court

dismissing the appeal as having abated, present

appeal, by special leave, has been filed.

SLP (C) No. 397 of 2018

9. Leave granted.

Facts giving rise to connected appeal (i.e., SLP (C) No.397 of 2018

10. The connected appeal arises from Original

Suit No. 10A of 1995. This suit was instituted by

Brajmohan and Manoj (i.e., transferees of Kishorilal)

for eviction of Gopal (i.e., plaintiff-respondent in the

other appeal) from the suit scheduled property, inter

Civil Appeal @ SLP (C) 36787/2017 Page 7 of 43 alia, on the ground that the plaintiffs had purchased

the suit property through sale deed executed by

Kishorilal and the suit property is required for their

use.

11. The Trial Court dismissed the suit vide

judgment and order dated 18.10.2000. Against

which, F. A. No. 217 of 2000 was filed before the

High Court. As the High Court had dismissed First

Appeal No. 213 of 2000 as abated, the decree of

specific performance in favour of Gopal attained

finality, rendering the sale-deed in favour of

Brajmohan and Manoj void, F.A. No.217 of 2000 was

dismissed by the High Court vide separate order

dated 12.09.2017.

12. Aggrieved by dismissal of F.A. No.217 of

2000, the present appeal has been filed, by special

leave to appeal (i.e., SLP (C) No. 397 of 2018).

13. Since the decision of the High Court in F. A.

No. 217 of 2000 is a consequence of dismissal of F.A.

No. 213 of 2000 as abated, these two appeals were

Civil Appeal @ SLP (C) 36787/2017 Page 8 of 43 heard together and are being decided by a common

judgment and order.

14. We have heard Sri Puneet Jain, Sr. Adv., for

the appellant; and Sri Yatindra Singh, Sr. Adv., for

the respondents.

SUBMISSIONS ON BEHALF OF APPELLANTS

15. Learned counsel for the appellants submitted:

(i) Kishorilal (i.e. judgment-debtor in O.S. No.

5A of 1992) had already transferred his

interest in the suit scheduled property (i.e.,

subject matter of the agreement), therefore,

his interest was fully represented by the

purchasers i.e., transferees lis pendens,

namely, Brajmohan and Manoj, who were on

record as appellants No. 2 and 3 in F.A. No.

213 of 2000; hence, on death of Kishorilal,

the appeal would not abate as the right to

pursue the appeal survived on the surviving

appellant(s).

Civil Appeal @ SLP (C) 36787/2017 Page 9 of 43 (ii) A transfer hit by Section 52 of the

Transfer of Property Act, 1882 (i.e. the

doctrine of lis pendens) is not void though

subservient to the rights of the parties under

the decree or order which may be made in the

suit or the proceeding. In such

circumstances, Brajmohan and Manoj were

entitled to represent the estate of Kishorilal

not only as transferee but also as an inter-

meddler of the estate of Kishorilal.

(iii) Besides that, on death of Kishorilal, his

four legal heirs, namely, Suresh, Murarilal,

Prakash and Sitabai, were brought on record.

Even if one of them died, the estate of

Kishorilal was substantially represented

through Suresh, Prakash and Sitabai. Hence,

there was no question of abatement of the

appeal for non-substitution of the legal

representatives of Murarilal.

Civil Appeal @ SLP (C) 36787/2017 Page 10 of 43

(iv) If Kishorilal’s name was erroneously

deleted after his death, it could be restored by

recall/ correction. Moreover, his heirs and

legal representatives were already on record,

therefore, there was no question of abatement

of the appeal.

(v) The High Court vide order dated

04.03.2013 had already negatived the plea of

abatement of appeal by observing that other

LRs of Kishorilal were on record besides

appellants No. 2 and 3 therefore, on non-

substitution of one of the heirs of Kishorilal,

High Court could not have declared appeal to

have abated. Moreover, such declaration was

barred by the principle of res judicata.

(vi) Otherwise also, High Court vide order

dated 04.03.2013 had given liberty to implead

other legal representatives of Murarilal, in

case necessary, therefore, impleadment

Civil Appeal @ SLP (C) 36787/2017 Page 11 of 43 application was allowed vide order dated

03.05.2013. In such circumstances, when all

LRs of late Kishorilal were on record, there

was no justification to dismiss the appeal as

having abated.

SUBMISSIONS ON BEHALF OF RESPONDENT(S)

16. Per contra, learned counsel for the

respondents submitted:

(i) A suit for specific performance is for

enforcement of contractual obligations. In

such a suit, the decree must require the

vendor and subsequent purchaser, if any, to

execute the sale-deed in favour of decree-

holder in terms of the agreement. This legal

position is settled by this Court in Lala

Durga Prasad and Others v. Lala Deep

Chand and Others4, followed in R.C.

Chandiok and Anr. v. Chuni Lal 4 (1953) 2 SCC 509

Civil Appeal @ SLP (C) 36787/2017 Page 12 of 43 Sabharwal and Ors.5. Therefore, if all legal

heirs of Kishorilal (i.e., vendor) including heirs

of his legal heir (i.e., Murarilal) are not

brought on record, within the limitation

period, the decree of specific performance

would attain finality qua one of the heirs of

Kishorilal. And since decree of specific

performance is inseparable, continuance of

appeal might result in inconsistent decrees,

therefore, the appeal would abate as a whole

on non-substitution of one of the heirs of

Kishori Lal, namely, Murarilal.

(ii) In a suit for specific performance, the

vendor is a necessary party. Therefore, even if

the subsequent purchaser is on record, the

vendor would have to be on the record for a

valid decree. In such circumstances, the

benefit of Order 41 Rule 4 of CPC is not

available as was held by this Court in 5 (1970) 3 SCC 140

Civil Appeal @ SLP (C) 36787/2017 Page 13 of 43 Dwarka Prasad Singh and Others v.

Harikant Prasad Singh and Others6.

(iii) Abatement is by operation of law.

Therefore, even in absence of a formal order,

the appeal or proceeding would abate for non-

substitution within the period of limitation.

(iv) Once abatement takes place, it can be set

aside by substitution after condoning the

delay and not by way of impleadment.

Therefore, if time for substitution has lapsed

and the appeal has abated, in absence of an

order condoning the delay in seeking

substitution and setting aside abatement, by

mere impleadment of LRs of a deceased party,

abatement cannot be deemed set aside.

Hence, the order dated 03.05.2013 is of no

consequence more so because Murarilal died

6 (1973) 1 SCC 179

Civil Appeal @ SLP (C) 36787/2017 Page 14 of 43 on 22.07.2007 and by the time impleadment

was allowed, the appeal had already abated.

(v) The application to set aside abatement was

filed on 24.07.2017 i.e. about 10 years after

Murarilal’s death. Therefore, it was justifiably

rejected by the High Court.

(vi) The order dated 09.05.2011 permitting

deletion of Kishorilal was at the risk of

appellants No. 2 and 3 and, therefore, the

said order cannot obviate subsequent

adjudication regarding abatement of appeal

on ground of res judicata.

Based on the aforesaid submissions, on behalf of

respondents, it was submitted that both appeals are

devoid of merit and should be dismissed.

17. We have considered the rival submissions and

have carefully perused the materials on record.

Civil Appeal @ SLP (C) 36787/2017 Page 15 of 43 ISSUES

18. Upon considering the rival submissions, in

our view, following issues arise for our 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 the 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?

Civil Appeal @ SLP (C) 36787/2017 Page 16 of 43

(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?

ANALYSIS

Summary of undisputed facts

19. Before addressing the issues, a brief resume

of undisputed facts of the case would be apposite.

Suit No. 5A of 1992 was instituted by Gopal (plaintiff-

respondent) against Kishorilal for declaration and

injunction and, later, by way of amendment, for

specific performance of a purchase agreement

between Kishorilal and Gopal concerning the suit

property, which was sold by Kishorilal, during

pendency of the suit, to Brajmohan and Manoj (i.e.,

the appellants), vide sale-deed dated 20.04.1992. In

consequence, the appellants were also impleaded as

defendants.

Civil Appeal @ SLP (C) 36787/2017 Page 17 of 43

20. The suit was decreed by the trial court.

Against which, F. A. No. 213 of 2000 was jointly filed

by Kishorilal (i.e., appellant no.1), Brajmohan

(appellant no.2) and Manoj (appellant no.3) before the

High Court. During pendency of the appeal,

Kishorilal died on 17.12.2005. His legal heirs

including Murarilal were substituted vide order dated

10.07.2006. Thereafter, Murarilal died in the year

2007. An application was submitted for deleting him

from the array of parties on the ground that interest

of Kishorilal was sufficiently represented by his other

LRs including appellants No. 2 and 3 (i.e., lis

pendens transferees). On this application, an order

was passed on 09.05.2011 deleting appellant no.1

(Kishorilal) from the array of parties, when the prayer

was to delete Murarilal. It is necessary to note that

on the date when order dated 09.05.2011 was passed

Kishorilal was already dead and stood substituted by

his four legal heirs including Murarilal. Thus, it is

clear that the direction to delete Kishorilal from the

Civil Appeal @ SLP (C) 36787/2017 Page 18 of 43 array of parties was nothing but a typographical

mistake which ought to be read/considered as a

direction to delete Murarilal as is clear from

subsequent orders passed in the course of the

appeal.

21. In the aforesaid context, when plaintiff-

respondent filed an application for abatement on

non-substitution of LRs of Murarilal, the High Court

passed an order on 04.03.2013 holding that since

LRs of Kishorilal, namely, appellants No. 2 and 3,

who had purchased the property, and other legal

heirs were there on record, the appeal cannot be said

to have abated. However, the High Court gave liberty

to implead other heirs of Kishorilal. Pursuant thereto,

application was filed to bring on record heirs of

Murarilal as proforma respondents. On this

application, vide order dated 03.05.2013, the High

Court allowed impleadment of Murarilal’s heirs as

proforma respondents.

Civil Appeal @ SLP (C) 36787/2017 Page 19 of 43

22. Later, when, during hearing of the appeal,

issue was raised by the decree holder that appeal has

already abated consequent to non-substitution of the

heirs of Murarilal, formal application was filed for

setting aside abatement along with prayer to condone

the delay. This application was rejected and the

appeal (i.e., F.A. No.213 of 2000) was dismissed as

having abated vide impugned order dated

12.09.2017.

23. In view of dismissal of F.A. No.213 of 2000,

the decree of specific performance in favour of

defendant in Suit No.10A of 1995 became operative,

therefore, F.A. No.217 of 2000, arising from dismissal

of Suit No.10A of 1995, was dismissed vide second

impugned order dated 12.09.2017.

24. On summation of facts what becomes clear is

that out of four heirs of Kishorilal, three remained on

record. The fourth, namely, Murarilal, died and was

not substituted within time. Though, later, his heirs

and legal representatives were also brought on record

Civil Appeal @ SLP (C) 36787/2017 Page 20 of 43 as proforma respondents in the appeal. In that

context, we shall address the issues.

Issues (i) and (ii)

25. Issues (i) and (ii) are inter-related, therefore

we shall address them together.

26. As we have noticed above that on death of

Kishorilal (i.e., appellant No.1) all his four heirs were

brought on record of F.A. No.213 of 2000 and, later,

on death of one of his heirs i.e., Murarilal, his LRs

were also brought on record, though beyond the

period prescribed by the law of limitation. It is thus

not a case where deceased Kishorilal (i.e., the vendor)

was totally unrepresented. Rather, he was

represented, initially, through his four legal heirs

and, later, on death of one of them, namely,

Murarilal, by three of them and the purchaser of his

interest in the property (i.e., the appellants No. 2 and

3). Later, even legal heirs of Murarilal were brought

on record as proforma-respondents through an order

of impleadment.

Civil Appeal @ SLP (C) 36787/2017 Page 21 of 43

27. The thrust of the submissions of the learned

counsel for the respondent(s) is on there being no

application of mind on the part of the High Court in

allowing impleadment of the heirs of Murarilal as

proforma respondents because, by that date, the

appeal had already abated. According to him, in

absence of condonation of delay in filing an

application to set aside abatement, or to substitute

the legal heirs, the appeal had abated by operation of

law and, therefore, such impleadment cannot revive

the appeal.

28. Besides that, the learned counsel for the

respondents submitted that the order dated

09.05.2011 deleting the name of Kishorilal/ Murarilal

was at the risk and cost of the appellants which

means that the order would not bar subsequent

adjudication of the issue on the principle of res

judicata.

29. On the other hand, the learned counsel for

the appellants laid emphasis on the observations in

Civil Appeal @ SLP (C) 36787/2017 Page 22 of 43 the subsequent order dated 04.03.2013 wherein the

Court had observed that since legal representatives of

Kishorilal, who have right, title and interest over the

disputed property, are already on record as

appellants No.2 and 3, the appeal would not abate.

According to the appellants, this observation in the

order dated 04.03.2013 coupled with subsequent

order dated 03.05.2013 bars, by principle of res

judicata, fresh consideration of the issue qua

abatement of the appeal on non-substitution of the

legal heirs of Murarilal (i.e., one of the heirs of

deceased-party Kishorilal).

30. As far as the principle of res judicata is

concerned, we are conscious of the law that it applies

also as between two stages in the same litigation to

the extent that a court, whether the trial court or a

higher court having at an earlier stage decided a

matter in one way will not allow the parties to re-

agitate the matter again at a subsequent stage of the

Civil Appeal @ SLP (C) 36787/2017 Page 23 of 43 same proceedings7. However, what is important is

that this does not preclude the appellate court or a

higher court to test the correctness of that decision8.

31. However, before delving further on the above

aspect, we shall first consider the decisions cited by

the learned counsel for the respondents to canvass

that a decree of specific performance must

necessarily require the vendor to execute the sale

deed even if the subject matter of sale agreement has

been sold by the vendor to a third person. According

to plaintiff-respondent’s counsel, though a

subsequent transferee may be required to join in the

conveyance, particularly where the transferee is not a

transferee lis pendens, the vendor would necessarily

have to join in the execution of the sale deed. As a

sequitur, it is argued, if the appeal abates qua the

vendor it abates as a whole.

7 See: Satyadhyan Ghosal & Ors. v. Deorajin Debi (Smt.) & Anr., 1960 SCC OnLine SC 15: AIR 1960 SC 941 8 See: Maharaja Moheshur Singh v. Bengal Government (1859) 7 MIA 283; affirmed in Satyadhyan Ghosal (supra), paragraph 16.

Civil Appeal @ SLP (C) 36787/2017 Page 24 of 43 Vendor is necessary party in a suit for specific performance

32. In Lala Durga Prasad9, before this Court a

question arose as to what would be the proper form

of a decree in a suit for specific performance where

the subject matter of the sale agreement has been

sold and the title to the property has validly passed

from the vendor and resides in the subsequent

transferee i.e., where the sale to subsequent

transferee is not void but only voidable at the option

of the earlier contractor. On the said issue, this

Court considered and rejected three alternative forms

of decrees, namely, (a) compelling the vendor to

execute the sale deed; (b) cancelling the subsequent

sale and ordering conveyance in favour of plaintiff;

and (c) conveyance in favour of plaintiff by the

subsequent purchaser alone. After rejecting the

above three options, this Court held:

“42. In our opinion, the proper form of decree is to direct specific performance of

9 See: Footnote 4

Civil Appeal @ SLP (C) 36787/2017 Page 25 of 43 the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff.”

33. In R.C. Chandiok10, decision of this Court in

Lala Durga Prasad was followed.

34. In Dwarka Prasad11, the question that arose

before this Court was whether in absence of

substitution of legal heirs of the vendor, the appeal

by a subsequent purchaser against the decree of

specific performance would abate. Two arguments

were raised on behalf of the appellant therein,

namely, (a) that vendor was not a necessary party as

the subsequent purchaser represents his interest;

and (b) the case would be covered by the provisions

of Order 41 Rule 4 of CPC. Both arguments were

rejected by this Court. While rejecting the first

argument, decision in Lala Durga Prasad was relied

10 See: Footnote 5 11 See: Footnote 6

Civil Appeal @ SLP (C) 36787/2017 Page 26 of 43 upon to hold that in a suit for specific performance

the vendor is a necessary party as he must join in the

execution of the sale deed. The second argument was

rejected by holding that since the appeal qua the

vendor would abate, the appeal at the behest of

subsequent purchaser cannot continue as it might

result in conflicting decrees.

35. The rationale of joining the vendor in the

conveyance in favour of holder of a decree of specific

performance, notwithstanding that vendor has

passed on his interest in the property to a third

person, is discernible from the following observations

in Dwarka Prasad:

“9. … In a suit instituted by a purchaser against the vendor and a subsequent purchaser for specific performance of the contract of sale the proper form of the decree is to direct specific performance of the contract between the vendor and the plaintiff and further direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. … Thus, ...the conveyance has to be executed by the vendor in favor of the plaintiff who seeks specific performance of the contract in his favor and the

Civil Appeal @ SLP (C) 36787/2017 Page 27 of 43 subsequent transferee has to join in the conveyance only to pass his title which resides in him. It has been made quite clear that he does not join in any special covenants made between the plaintiff and his vendor. All that he does is to pass on his title to the plaintiff. ….. It is thus difficult to sustain the argument that the vendor is not a necessary party when, according to the view accepted by this court, the conveyance has to be executed by him although the subsequent purchaser has also to join as to pass on the title which resides in him to the plaintiff. It must be remembered that if there are any special covenants and conditions agreed upon in the contract for sale between the original purchaser and the vendor those have to be incorporated in the sale although it is only the vendor who will enter into them and the subsequent purchaser will not join in those special covenants. But without the vendor joining in the execution of the sale deed special covenants, if any, between him and the original purchaser cannot be incorporated in the sale deed. The whole idea and purpose underlying a decree for specific performance is that if a decree for such a relief is granted the person who has agreed to purchase the property should be put in the same position which would have obtained in case the contracting parties i.e., vendor and the purchaser had, pursuant to the agreement, executed a deed of sale and completed it in every way. Therefore, it is essential that the vendor must join in the execution of the sale deed. If that be so, it is not possible to comprehend how he is not a necessary party…”

Civil Appeal @ SLP (C) 36787/2017 Page 28 of 43

36. The law is thus settled that the vendor is a

necessary party in a suit for specific performance of

an agreement for sale, notwithstanding that vendor

has transferred his interest in the subject matter of

the agreement to a third party. Reason being that the

transferee/ third party cannot be subjected to special

covenants, if any, between the vendor and the

plaintiff-purchaser. Besides that, the object of the

decree of specific performance is to put the person

who has agreed to purchase the property in the same

position which he would have obtained in case the

contracting parties i.e., vendor and the purchaser

had, pursuant to the agreement, executed a deed of

sale and completed it in every way.

Decisions relied on behalf of the Appellants

37. Now, we shall consider the decisions cited by

the appellant, namely,

Civil Appeal @ SLP (C) 36787/2017 Page 29 of 43

(a) Bhurey Khan v. Yaseen Khan (Dead) by

LRs & Ors.12. The issue under

consideration in this case was whether the

High Court was justified in abating the

second appeal for non-impleadment of

some of the heirs of the deceased

respondent. This Court, following its earlier

decision in Mahabir Prasad v. Jage Ram

& Others13, held that where the estate of a

deceased party is sufficiently represented

by his legal heirs on record, proceedings

would not abate if some of the heirs are left

out. The said view has been followed in

Shivshankara & Anr. v. H.P. Vedavyasa

Char14.

12 1995 Supp (3) SCC 331 13 (1971) 1 SCC 265. See Paragraph 7, where it was observed:

“7. …. Where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record, as an heir and legal representative. Even if there are other heirs and legal representatives and no application for impleading them is made within the period of limitation prescribed by the Limitation Act, the proceeding will not abate…” 14 (2023) 13 SCC 1, paragraphs 59 and 60

Civil Appeal @ SLP (C) 36787/2017 Page 30 of 43

(b) Mohammad Arif v. Allah Rabbul Alamin

& Ors.15 . In this case, it was held that

transferee from a deceased party could

represent the interest of the deceased party

as an intermeddler and if such transferee

is already on record, there is no necessity

for an application to bring on record the

legal heirs of the deceased appellant. [Note:

It is not clear from the reported judgment

whether the suit here was for specific

performance of a contract.]

(c) K. Naina Mohamed (Dead) through LRs

v. A.M. Vasudevan Chettiar (dead)

through LRs & Ors.16. In this case,

following Mohd. Arif (supra), it was held

that party which has purchased the

property concerned can represent the

estate of deceased. [Note: It is not clear from

15 (1982) 2 SCC 455 16 (2010) 7 SCC 603

Civil Appeal @ SLP (C) 36787/2017 Page 31 of 43 the reported judgment whether the suit was

for specific performance of a contract.

Although it appears to be based on right of

pre-emption. Otherwise also, in this case

decision in Lala Durga Prasad (supra)

was not considered.]

(d) Y.B. Patil & Ors. v. Y.L. Patil17. In this

case it was observed that principles of res

judicata can be invoked not only in

separate subsequent proceedings but also

in subsequent stage of the same

proceedings. Therefore, once an order is

made during a proceeding it becomes final

and is binding at any subsequent stage of

that proceeding. The same principle was

reiterated in Bhanu Kumar Jain v.

Archana Kumar & Anr.18

17 (1976) 4 SCC 66 18 (2005) 1 SCC 787

Civil Appeal @ SLP (C) 36787/2017 Page 32 of 43

(e) Mithailal Dalsangar Singh & Ors. v.

Annabai Devram Kini & Ors.19. In this

case, it was, inter alia, held that a simple

prayer to bring LRs on record, without

specifically praying for setting aside

abatement, may in substance be construed

as a prayer to set aside the abatement.

Further, the prayer for setting aside

abatement is to be considered liberally and

the courts must adopt a justice-oriented

approach dictated by the uppermost

consideration that ordinarily a litigant

ought not to be denied an opportunity of

having a lis determined on merits unless

he has, by gross negligence, deliberate

inaction or something akin to misconduct,

disentitled himself from seeking the

indulgence of the court.

19 (2003) 10 SCC 691

Civil Appeal @ SLP (C) 36787/2017 Page 33 of 43

(f) Madhukar Nivrutti Jagtap & Ors. v.

Pramilabai Chandulal Parandekar

(Dead) through LRs & Ors.20. In this case

it was held that the effect of doctrine of lis

pendens is not to annul all transfers

effected by the parties to a suit but only to

render them subservient to the rights of

the parties under the decree or order which

may be made in that suit. [Note: This was

cited so as to canvass that the sale deed

executed by Kishorilal in favour of the

second and third appellants was not void

and, therefore, they could validly represent

the interest of Kishorilal and, therefore, the

appeal would not abate].

Relevant legal principles deducible from the decisions cited by both sides

20 (2020) 15 SCC 731

Civil Appeal @ SLP (C) 36787/2017 Page 34 of 43

38. Upon consideration of the decisions cited by

both sides, the legal principles deducible therefrom,

and relevant to the issue in hand, are summarized

below:

(1) Before declaring a suit or proceeding to

have abated on ground of non-substitution of

the heirs/ legal representatives of a deceased

party, the Court must examine whether the

interest of the deceased party qua the

subject matter of the proceeding is

sufficiently represented by other parties

already on record. If the interest of the

deceased party is sufficiently represented by

other parties already on record, and the

decree/order eventually passed in the suit or

proceeding would not be rendered non-

executable for absence of that party, the suit

or proceeding would not abate.

Civil Appeal @ SLP (C) 36787/2017 Page 35 of 43 (2) In a suit for specific performance of an

agreement for sale of an immovable property,

vendor is a necessary party notwithstanding

he has transferred his interest in the

property to a third party. As a sequitur, a

suit or an appeal emanating from such a suit

would abate if, upon death of the vendor, his

legal heirs/ representatives are not

substituted.

(3) Though a transfer lis pendens is not

always void, such transferee’s title is

subservient to the decree that may ultimately

be passed in the pending suit. As a sequitur,

a transferee lis pendens is not a necessary

party in a suit for specific performance.

(4) However, a transferee lis pendens may

pursue the appeal against a decree of specific

performance against the vendor, as a legal

representative/ inter-meddler of the estate of

Civil Appeal @ SLP (C) 36787/2017 Page 36 of 43 the vendor. But, having regard to the nature

of decree that is required to be passed in a

suit for specific performance, as held in Lala

Durga Prasad (supra) and Dwarka Prasad

(supra), the vendor would have to be

impleaded as a party in the appeal and on

his death, on non-substitution of his heirs

/legal representatives, the appeal would

abate.

Kishorilal (deceased-defendant) sufficiently represented in the appeal before the High Court

39. Having culled out the relevant legal

principles, we shall now consider whether, on non-

substitution of the heirs of Murarilal, the appeal had

abated or not. As noticed above, Murarilal was one

of the four heirs of Kishorilal. Kishorilal (appellant

No.1) had already transferred the property to

appellants No. 2 and 3 during the course of suit

proceeding. Therefore, on the date of filing the

appeal, title in the subject matter of the sale

Civil Appeal @ SLP (C) 36787/2017 Page 37 of 43 agreement resided in those appellants albeit

subservient to the decree. However, presence of

Kishorilal was necessary to effectively execute the

decree of specific performance which is in the nature

of a direction to fulfil contractual obligations. In

such circumstances, on death of Kishorilal, his LRs

were required to be brought on record. In the

present case, on the death of Kishorilal (i.e.,

appellant No.1) all his LRs were substituted as

appellants No. 1(1), 1(2), 1(3) and 1(4), though, later,

one of them, namely, Murarilal i.e., appellant 1(2),

died. Since three legal heirs of Kishorilal were

already on record, besides the appellants No.2 and 3

in whom title in the property resided, the estate of

Kishorilal was sufficiently represented and, therefore,

in our view, the appeal did not abate on non-

substitution of LRs of Murarilal as was rightly held

earlier by the High Court vide order dated

03.05.2013. The aforesaid view is in conformity with

Civil Appeal @ SLP (C) 36787/2017 Page 38 of 43 the law laid down by this Court in Bhurey Khan and

Mahabir Prasad.

40. The decision in Dwarka Prasad (supra),

relied by the learned counsel for respondents, in our

view, is not of much help to the respondents because

in that case the vendor’s interest was not represented

at all. Whereas in the present case, three out of four

legal heirs of Kishorilal (i.e., the vendor) were already

on record. In our view, there is a clear distinction

between non-substitution of the legal

representatives/ legal heirs of a deceased party and

non-substitution of one of the heirs of a deceased

party. In the latter, if the interest of the deceased

party is sufficiently represented by other heirs/ legal

representatives on record, there will be no abatement

as was held in Mahabir Prasad (supra) and Bhurey

Khan (supra). Therefore, in our view, Dwarka

Prasad’s decision is distinguishable on facts.

Civil Appeal @ SLP (C) 36787/2017 Page 39 of 43 High Court’s final decision is hit by principle of res judicata

41. Besides above, once the High Court, vide

order dated 03.05.2013, had taken the view that

appeal had not abated on non-substitution of heirs of

Murarilal i.e., appellant No.1(2), as other heirs of

Kishorlal were on record besides appellants 2 and 3,

it was not open for the High Court to revisit the issue

later, because such an exercise by the High Court

was hit by principle of res judicata which applies with

equal force to different stages of the same proceeding

as it does to a separate subsequent proceeding. In

this regard we are supported by decisions of this

Court in Satyadhyan Ghosal21 , Y.B. Patil (supra)

and Bhanu Kumar Jain (supra).

42. The argument on behalf of respondent that

order dated 09.05.2011 specifically mentions that

deletion was at the risk of the appellant and,

therefore, the issue was kept open does not cut much

21 See; Footnote 7

Civil Appeal @ SLP (C) 36787/2017 Page 40 of 43 ice, because in the subsequent orders dated

04.03.2013 and 09.05.2013, the High Court

specifically held that appeal had not abated.

43. We are, therefore, of the considered view that

the appeal had not abated on non-substitution of the

heirs of Murarilal within time. Issue (i) and (ii) are

decided in the aforesaid terms.

Direction to delete name of Appellant No. 1 (i.e., Kishorilal’s name) from the array of parties was nothing but a clerical/ typographical mistake in the order dated 9.5.2011

44. So far as the direction in the order dated

09.05.2011 to delete appellant No.1 is concerned, it

was a pure clerical/ typographical error inasmuch as

the prayer made was to delete appellant No.1(2) i.e.,

Murarilal from the array of parties as other LRs of

Kishorilal sufficiently represented his interest. Such

a mistake could be corrected at any stage in exercise

of powers under Sections 151 and 152 of CPC.

Therefore, the plaintiff-respondent cannot take

advantage of the aforesaid mistake.

Civil Appeal @ SLP (C) 36787/2017 Page 41 of 43 Issue (iii)

45. As we have already concluded that appeal

had not abated on non-substitution of legal heirs of

deceased Murarilal i.e., appellant No.1(2), there was

no question of setting aside abatement. Rather, the

High Court was well within its jurisdiction in allowing

impleadment of his heirs as proforma respondents in

exercise of powers under Order 1 Rule 10 of CPC.

Issue (iii) is decided accordingly.

Issue (iv)

46. In view of our conclusion that the appeal had

not abated, the High Court had the discretion to

allow impleadment of Murarilal’s heirs and for such

impleadment, it was not required to condone the

delay or to set aside abatement. Issue (iv) is decided

accordingly.

Conclusion

47. In view of our findings on the issues framed

above, the view of the High Court that the appeal had

abated is erroneous and is liable to be set aside.

Civil Appeal @ SLP (C) 36787/2017 Page 42 of 43 Since the connected appeal was dismissed by the

High Court only on account of dismissal of the other

appeal as abated, the order dismissing the said

appeal is also liable to be set aside.

48. Consequently, these appeals are allowed. The

impugned order(s) dated 12.09.2017 passed by the

High Court in F.A. No.213 of 2000 and F.A. No.217 of

2000 are set aside. Both the aforesaid first appeals

are restored to their original number on the file of the

High Court and they shall be decided in accordance

with the law.

49. Pending applications, if any, in both the

appeals shall stand disposed of.

.....................................J. (MANOJ MISRA)

..................................J. (UJJAL BHUYAN)

New Delhi;

January 12, 2026.

Civil Appeal @ SLP (C) 36787/2017 Page 43 of 43