Suresh Chandra(Deceased) Thr. Lrs vs Parasram

2025 INSC 873 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS……….. OF 2025 (Arising out of SLP (C) Nos.15900-15902/2022)

SURESH CHANDRA (DECEASED) THR. LRS. & ORS. …APPELLANT (S) VERSUS PARASRAM & ORS. …RESPONDENT (S)

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 before the High Court2, by the impugned order dated

21.02.2022, the appeal of the appellant(s) herein was

declared to have abated due to non-substitution of the legal

Signature Not Verified Digitally signed by 1 VALLI BORRA LM Second Appeal No.446 of 2001 Date: 2025.07.18 17:59:03 2 Reason: The High Court of Madhya Pradesh at Gwalior IST

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 1 of 58 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 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.

3 MCC No.697 and MCC No.700 of 2022

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 2 of 58

(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.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 3 of 58

(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

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 4 of 58 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’ (L.Rs of Suresh

Chandra’s) right was independent of the deceased appellant

(Ram Babu) and as under Order XLI Rule 44 of the Civil

Procedure Code, 19085 one of the defendants can seek

reversal of the whole decree, when the decree is based on

ground common to all, there could be no abatement of the

appeal. In the alternative, it was submitted that abatement

can always be set aside when substitution of LRs is applied

for by showing sufficient cause for the delay. It was

contended that the appellants as well as LRs of deceased

Ram Babu applied for substitution by showing sufficient

cause for the delay, therefore, the High Court ought to have

set aside the abatement and proceeded to decide the appeal

on merit. Certain decisions6 were cited by appellants’ counsel

which shall be dealt with, if considered necessary.

4 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 defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. 5 CPC 6 Decisions cited by the appellant: (i) Delhi Development Authority v. Diwan Chand Anand, (2022) 10 SCC 428;

(ii) Sakharam v. Kishanrao, 2022 SCC OnLine SC 2035; (iii) Gurnam Singh v. Gurbachan Kaur, (2017) 13 SCC 414; and (iv) State of Punjab v. Shamlal Murari, (1976) 1 SCC 719; (v) Baij Nath v. Ram Bharose, AIR 1953 All 565 =1953 SCC OnLine All 43.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 5 of 58 RESPONDENT’S SUBMISSIONS

7. Per contra, the learned counsel for the contesting

respondent submitted, firstly, the heirs of Ram Babu have

neither filed Special Leave Petition nor have joined as

petitioners, though impleaded as proforma- respondents,

therefore the order rejecting their substitution application

cannot be questioned. Secondly, the decree against the

defendants was joint and indivisible, therefore, if the decree

stands against Ram Babu, a decree in favour of Suresh

Chandra (through LRs) would result in a conflicting decree.

Further, the provisions of Order XLI Rule 4 do not exclude

the applicability of Order XXII Rule 3. Thus, once all

defendants join to file an appeal, death of one of the

appellants would necessitate a substitution, if the right to

sue does not survive on the surviving appellants alone.

Therefore, Order XLI Rule 4 would not come to the rescue of

the appellants. Hence, the whole appeal abated. To buttress

his submissions learned counsel for the contesting

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 6 of 58 respondent cited certain decisions7 which we shall deal with,

if considered necessary.

ISSUES

8. Based on the rival submissions, following issues fall for

our consideration:

(a) Whether the order rejecting application(s) seeking

condonation of delay for setting aside abatement and

substitution of legal representatives of deceased-

appellant Ram Babu suffers from any legal infirmity?

(b) If the answer to (a) is in the negative, whether the

second appeal abated wholly or partially, or not at all,

on account of non-substitution of LRs of deceased

defendant-appellant no.2 (i.e., Ram Babu)?

ANALYSIS

Issue (a)

9. Issue (a) arises for our consideration because the High

Court rejected two set of applications. One filed by LRs of

Ram Babu and the other filed by LRs of Suresh Chandra (i.e.,

7 Decisions cited by contesting respondent’s counsel: (i) Baij Nath v. Ram Bharose, AIR 1953 Allahabad 565 = 1953 SCC OnLine All 43; (ii) State of Punjab v. Nathu Ram, AIR 1962 SC 89 = 1961 SCC OnLine SC 137; (iii) Ram Sarup v. Munshi, AIR 1963 SC 553 = 1962 SCC OnLine SC 168; (iv) Pandit Shri Chand and others v. Jagdish Parshad Kishan Chand and others, AIR 1966 SC 1427 = 1966 SCC OnLine SC 206; (v) Badni v. Shri Chand, AIR 1999 SC 107; (vi) Hemareddi (dead) through Legal Representatives v. Ramchandra Yallappa Hosmani, (2019) 6 SCC 756; Delhi Development Authority v. Divan Chand Anand & Ors. (supra); Ashok Transport Agency v. Awadesh Kumar & Ors., (1999) SCC 567; Gurnam Singh v. Gurbachan Kaur (supra); Amba Bai v. Gopal, (2001) 5 SCC 570; and Venigalla Koteswarmma v. Madampati Suryamba, (2021) 4 SCC 246.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 7 of 58 the surviving appellants of the second appeal) who were

already impleaded. Both were filed after the High Court had

declared the appeal to have abated for non-substitution of

LRs of Ram Babu. No doubt, the Court has power to condone

the delay in filing an application for setting aside abatement

as well as for substitution and can set aside the abatement

in exercise of its power under Order XXII Rule 98 of CPC. But

before condoning the delay the Court must consider whether

sufficient cause has been shown for condonation.

10. In the instant case, death of Ram Babu took place

on 19.08.2015; 90 days period of limitation to move an

application for substitution9, and 60 days limitation period

to set aside abatement10, expired in the month of January

2016 itself. Importantly, through IA No.1621 of 2016 filed

by the respondent, the Court was informed about the death

of Ram Babu in 2016 itself, yet no application was moved till

8 Order XXII Rule 9. Effect of abatement or dismissal. – (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of Section 5 of the Indian limitation Act, 1877 (15 of 1877), shall apply to applications under sub- rule (2).

Explanation. -- Nothing in this rule shall be construed as barring, in any later suit, a defense based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order. 9 Article 120 of the Schedule to The Limitation Act, 1963 10 Article 121 of the Schedule to The Limitation Act, 1963 Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 8 of 58 2022. In fact, the applications were filed after the appeal was

declared to have abated. Besides that, the surviving

appellant(s) and the deceased appellant were close relatives,

therefore, it cannot be believed that they were not aware of

the death of co-appellant Ram Babu. In these

circumstances, if the High Court found there was no

sufficient cause to condone the delay, no fault can be found

with its order as to justify our interference under Article 136

of the Constitution. Issue (a) is decided accordingly.

Issue (b)

11. Now the question arises whether the second appeal

abated wholly or partially on death of sthe deceased

appellant.

GENERAL PRINCIPLES RELATING TO ABATEMENT OF AN APPEAL

12. Before we set out to address the aforesaid issue, an

overview of the provisions governing abatement of an appeal

under the CPC would be apposite. Order XXII Rule 111 of the

CPC lays down the general principle that if the right to sue

survives, the suit shall not abate on death of either the

11 Order XXII Rule 1 – No abatement by party’s death if right to sue survives. - The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 9 of 58 plaintiff or the defendant. Order XXII Rule 1112 makes it clear

that all previous rules i.e., rules 1 to 10 of Order XXII would

apply to appeals and for that purpose reference to the word

‘plaintiff’ would include an appellant; ‘defendant’ would

include a respondent; and suit would include an appeal. As

a logical corollary thereof, the right to sue includes the ‘right

to appeal’. Rule 213 of Order XXII deals with a situation

where one of the plaintiffs or defendants to a suit dies and

the right to sue survives to the surviving plaintiff(s) or

defendant(s). In a situation governed by Rule 2, the suit does

not abate; only a note is to be put that the right to sue

survives to the surviving plaintiff(s) or defendant(s). Order

XXII Rule 314 deals with a situation where one of two or more

plaintiffs dies and the right to sue survives, though not to the

surviving plaintiff(s) alone, or where the sole plaintiff dies

12 Order XXII Rule 11 – Application of Order to appeals. – In the application of this Order to appeals so far as may be, the word ‘plaintiff’ shall be held to include an appellant, the word ‘defendant’ a respondent, and the word ‘suit’ an appeal.

13 Order XXII Rule 2 – Procedure where one of several plaintiffs or defendants dies and right to sue survives.

- Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. 14 Order XXII Rule 3 – Procedure in case of death of one of several plaintiffs or of sole plaintiff. – (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court on the application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application the defendant, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 10 of 58 and the right to sue survives. In such a case, if within time

limited by law no application is made for substituting the

legal representatives of the deceased plaintiff or plaintiffs, the

suit would abate so far as the deceased plaintiff is concerned.

Rule 415 of Order XXII is a provision corresponding to Rule 3

to deal with a situation where one of several defendants or

the sole defendant dies and the right to sue survives, though

not against the surviving defendant alone.

13. A plain reading of Rules 3 and 4 of Order XXII of the

CPC would create an impression that in absence of

substitution of the legal representatives of the deceased

15 Order XXII Rule 4 – Procedure in case of death of one of several defendants or of sole defendant. – (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make an any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where --

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the court shall, in considering the application under the said Section 5 have due regard to the fact of such ignorance, if proved.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 11 of 58 plaintiff or defendant, or the deceased appellant or

respondent, as the case may be, abatement is qua the

deceased plaintiff or defendant alone, in the context of a suit,

or the deceased appellant or respondent alone, in the context

of an appeal, provided the right to sue does not survive to the

surviving plaintiff(s) or appellant(s) alone, or against the

surviving defendant(s) or respondent(s) alone, as the case

may be. Though this is all that Rules 3 and 4 declare, the

law has evolved that in certain kinds of litigation the

consequences of abatement qua a party are not limited to the

deceased party alone; rather, it affects the litigation in its

entirety.

14. As to when an appeal would abate in its entirety for

non-substitution of legal representatives of a deceased party

depends upon the facts and circumstances of an individual

case. The law in this regard has been discussed in detail and

summarized by a five-Judge Bench of this Court in Sardar

Amarjit Singh Kalra (Dead) by LRs and Others v. Pramod

Gupta (Smt.) (Dead) by LRs and Others16 as under:

“21. ……………….. (a) In case of “joint and indivisible decree”, “joint and inseverable or inseparable decree”, the abatement of

16 (2003) 3 SCC 272

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 12 of 58 proceedings in relation to one or more of the appellant(s) or respondent(s) on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto, as otherwise inconsistent or contradictory decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject-matter vis-à-vis the others;

(b) the question as to whether the court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially; (c) existence of a joint right as distinguished from tenancy-in-common alone is not the criterion but the joint character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged; (d) where the dispute between two groups of parties centered around claims or was based on grounds common relating to the respective groups litigating as distinct groups or bodies — the issue involved for consideration in such class of cases would be one and indivisible; and (e) when the issues involved in more than one appeal dealt with as a group or batch of appeals, are common and identical in all such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals.

xxxx xxxx xxxx

30. The question, therefore, as to when a proceeding before the court becomes or is rendered impossible or possible to be proceeded with, after it had partially abated on account of the death of one or the other party on either side has been always considered to depend upon the fact as to whether the decree obtained is a joint decree or a severable one and that in case of a

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 13 of 58 joint and inseverable decree if the appeal abated against one or the other, the same cannot be proceeded with further for or against the remaining parties as well. If otherwise, the decree is a joint and several or separable one, being in substance and reality a combination of many decrees, there can be no impediment for the proceedings being proceeded with among or against those remaining parties other than the deceased. …

31. But, in our view also, as to what those circumstances are to be, cannot be exhaustively enumerated and no hard and fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. …… At times, one or the other parties on either side in the litigation involving several claims or more than one, pertaining to their individual rights may settle among themselves the dispute to the extent their share of proportion of rights is concerned and may drop out of context, bringing even the proceedings to a conclusion so far as they are concerned. If all such moves are allowed to boomerang adversely on the rights of the remaining parties even to contest and have their claims adjudicated on merits, it would be a travesty of administration of justice itself.

32. The area of differences in the catena of decisions brought to our notice is not so much with reference to the principles to be applied to different nature of decrees but only as to which of the decree(s) falls, when or under what circumstances under one or the other of the classification i.e. joint and inseverable or joint and severable or separable. This aspect seems to have been adjudged in different cases depending upon the nature/source of rights, the cause of

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 14 of 58 action, the manner they were asserted by the parties themselves and the contradictory nature of decrees impossible of execution, likely to result when considered differently. It is for this reason any standardized formula was avoided and the matter left for the consideration of courts, on the peculiar nature of the cases coming for determination. ……

33. Even assuming that the decree appealed against or challenged before the higher forum is joint and several but deals with the rights of more than one recognized in law to belong to each one of them on their own and unrelated to the others, and the proceedings abate in respect of one or more of either of the parties, the courts are not disabled in any manner to proceed with the proceedings so far as the remaining parties and part of the appeal is concerned. As and when it is found necessary to interfere with the judgment and decree challenged before it, the court can always declare the legal position in general and restrict the ultimate relief to be granted by confining it to those before the court only rather than denying the relief to one and all on account of a procedure lapse or action or inaction of one or the other of the parties before it. The only exception to this course of action should be where the relief granted and the decree ultimately passed would become totally unenforceable and mutually self-destructive and unworkable vis-à-vis the other part, which had become final. As far as possible, courts must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose, “ubi jus ibi remedium” (where there is a right, there is a remedy) being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice.

34. In the light of the above discussion, we hold:

(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 15 of 58 rights, the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree.

The same would be the position in the case of defendants or respondents having similar rights contesting the claims against them.

(2) Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one now before us, under the Land Acquisition Act or in similar nature of proceedings and/or claims in assertion of individual rights of parties are clubbed, consolidated and dealt with together by the courts concerned and a single judgment or decree has been passed, it should be treated as a mere combination of several decrees in favour of or against one or more of the parties and not as joint and inseparable decrees.

(3) The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would not be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as not being properly and duly constituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-à-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. For that reason, a decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other.” (Emphasis supplied)

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 16 of 58

15. In State of Punjab vs. Nathu Ram17, which was

noticed and followed by the five-Judge Bench in Sardar

Amarjit Singh (supra), this Court enumerated certain tests

to determine whether the whole appeal would abate on

account of non-substitution of the legal representatives of

one or some of the deceased parties. In this regard it was

observed:

“6. 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 considerations 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 coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to court 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 who are still before the court; and (c) when the decree against the surviving respondents, if the appeal

17 Referred to in Footnote 7

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 17 of 58 succeeds, be ineffective that is to say, it would not be successfully executed.” (Emphasis supplied)

16. In Ram Sarup vs. Munshi18 there was a decree of

pre-emption against the defendant-appellants who had

bought the property from the co-defendants in the suit. One

of the appellants died and his legal representatives were not

brought on record. The issue which fell for consideration was

whether the whole appeal abated, or the abatement was qua

the deceased appellant only. Argument on behalf of the

surviving appellants was whatever might be the position as

regards the share to which the deceased appellant was

entitled in the property purchased, the interest of the

deceased was distinct and separate from that of the others

and that the abatement could, in any event, be only partial

and would not affect the continuance of the appeal by the

surviving appellants at least as regards their share in the

property. To deal with the above argument, this Court called

for the sale deed by which the appellants had purchased the

property. Upon consideration of the sale deed, the Court

found that it was not a case of sale of any separated item of

18 Referred to in Footnote 7

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 18 of 58 property in favour of the deceased appellant but of one set of

properties to be enjoyed by vendees in equal shares. Based

on that, the five-Judge Bench of this Court held:

“It is clear law that there can be no partial pre- emption because pre-emption is the substitution of the pre-emptor in place of the vendee and if the decree in favor of the pre-emptor in respect of the share of the deceased Mehar Singh has become final it is manifest that there would be two conflicting decrees if the appeal should be allowed and the decree for pre-emption insofar as appellants 2 to 5 are concerned is interfered with. Where a decree is a joint one and a part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated.” (Emphasis supplied)

17. Having regard to the aforesaid decisions, the law

governing determination of the issue as to whether

abatement of an appeal on non-substitution of a deceased

party is partial or whole, can be summarized as under:

1. The answer to the question whether the

entire appeal abates or it abates partially qua the

deceased party alone, will depend on facts of each

case and, therefore, no exhaustive statement about

the circumstances in which the entire appeal would

abate can be made.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 19 of 58 2. As a matter of course courts will not proceed

with an appeal (a) when the success of the appeal

may lead to the court coming to a decision which is

in conflict with the decision between the appellant

and the deceased respondent 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 who are still before the

court; and (c) when the decree against the surviving

respondents, if the appeal succeeds, be ineffective

that is to say, it would not be successfully executed.

3. In a case of “joint and indivisible decree” or

“joint and inseverable or inseparable decree”, the

abatement of appeal in relation to one or more of

the appellant(s) or respondent(s) on account of

failure to bring on record his or their legal

representatives in time would prove fatal to the

entire appeal because proceeding qua the surviving

party or parties may give rise to inconsistent or

contradictory decrees.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 20 of 58 4. The question as to whether the decree is

joint and inseverable, or joint and severable or

separable, must be decided, for the purposes of

abatement or dismissal of the entire appeal, only

with reference to the fact as to whether the

judgment/decree passed in the proceedings vis-à-

vis the remaining parties would suffer the vice of

contradictory or inconsistent decrees.

5. A decree can be said to be contradictory or

inconsistent with another decree only when the two

decrees are incapable of enforcement or would be

mutually self-destructive and that the enforcement

of one would negate or render impossible the

enforcement of the other which means that the two

decrees are mutually irreconcilable or totally

inconsistent, that is, if laid side by side, the only

impression would be that one is in the teeth of the

other.

6. Where the plaintiffs or appellants have

distinct, separate and independent rights of their

own i.e., not inter-dependent upon the other, and

for the purpose of convenience, or otherwise, joined

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 21 of 58 together in a single litigation to vindicate their

rights, the decree passed by the court thereon is to

be viewed in substance as a combination of several

decrees in favour of one or the other parties and not

as a joint and inseverable decree.

7. Existence of a joint right as distinguished

from tenancy-in-common is not the criterion of a

joint or inseverable or inseparable decree. The joint

character of the decree will take colour from the

nature of the decree challenged.

ILLUSTRATIVE CASES WHERE ENTIRE APPEAL STOOD ABATED ON NON-SUBSTITUTION OF A DECEASED PARTY

18. Now, we shall examine those decisions where this

Court held appeal to have abated in its entirety on non-

substitution of legal representatives of one of the deceased

parties.

19. In Hemareddi vs. Ramachandra19, one

Govindareddi, the propositus died, leaving behind two

sons and a daughter. The plaintiffs were children of one of

the two sons. The second defendant was the wife of the

19 Referred to in Footnote 7

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 22 of 58 other son. The suit properties were alleged to be the

properties of the joint family of Govindareddi and his sons.

Suit was filed for injunction as also for declaration that

defendant no.1 is not the adopted son. Trial court

dismissed the suit and upheld the adoption. Against

which, an appeal was filed. During the pendency of the

appeal, one of the plaintiff-appellants died. His LRs were

not brought on record. The High Court took the view that

the entire appeal abated. The matter travelled to this

Court. The question that fell for consideration was whether

the whole appeal abated, or it abated qua the deceased

appellant only. Upholding the decision of the High Court,

this Court reasoned thus:

“17. ………. The appeal having abated in regard to the late brother, the decree of the trial court has become final qua the deceased brother of the appellant. The effect of the same is that the adoption is found legal. The result of the appeal being allowed to proceed further and succeed in the appeal would be the passing of a decree by the High Court. The said decree would be to the effect that the adoption is invalid. The suit which was jointly filed by the appellant and his late brother would have to be decreed whereas the suit filed by the appellant and his late brother stands dismissed by the trial court. Both the decrees cannot stand together. There would be irreconcilable conflict. The defendants are common. They would be faced with two

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 23 of 58 decrees regarding the same subject matter which are irrevocably conflicting.”

20. In State of Punjab vs. Nathu Ram (supra), the

State acquired on lease certain parcels of land belonging to

Labhu Ram and Nathu Ram for military purposes under the

Defence of India Act, 1939. Labhu Ram and Nathu Ram,

brothers, refused to accept the compensation offered to them

by the Collector and applied to the Punjab Government

through the Collector, under rule 6 of the Punjab Land

Acquisition (Defence of India) Rules, 1943. The State

Government referred the matter to an arbitrator under rule

10, who, after inquiry, passed an award ordering the

payment of an amount higher than what was offered by the

Collector. The State Government appealed against the award

to the High Court of Punjab. During the pendency of the

appeal, Labhu Ram, one of the respondents, died. The High

Court held that the appeal abated against Labhu Ram and

that its effect was that the appeal against Nathu Ram also

abated. The State Government appealed to this Court. While

dismissing the appeal, this Court, inter alia, observed:

“9. …… the award of the arbitrator in each of these cases was a joint one, in favor of both the respondents Labhu Ram and Nathu Ram. To illustrate the form of the award, we may quote

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 24 of 58 the award for the year 1945-46 in the proceedings leading to Civil Appeal No.635 of 1957. It is:

“On the basis of the report of S Lal Singh, Naib Tehsildar (Exhibit PW9/1) and Sheikh Aziz Din, Tehsildar, (Exhibit PW9/2), the applicants are entitled to sum of Rs. 4140 on account of rent, plus Rs.3872/ 8/0 on account of income tax etc., due to the inclusion of Rs. 6193/8/0 in their total income, plus such sum as the petitioners have to pay to the Income Tax Department on account of the inclusion of Rs. 4140 in their income as awarded by this award.” The result of the abatement of the appeal against Labhu Ram is therefore that his legal representatives are entitled to get compensation on the basis of this award even if they are to be paid separately on calculating their rightful share in the land acquired, for which this compensation is decreed. Such calculation is foreign to the appeal between the State of Punjab and Nathu Ram. The decree in the appeal will have to determine not what Nathu Ram's share in this compensation is, but what is the correct amount of compensation with respect to the land acquired for which this compensation has been awarded by the arbitrator. The subject matter for which the compensation is to be calculated is one and the same. There cannot be different assessments of the amount of compensation for the same parcel of land. The appeal before the High Court was an appeal against a decree jointly in favour of Labhu Ram and Nathu Ram. The appeal against Nathu Ram alone cannot be held to be properly constituted when the appeal against Labhu Ram had abated. To get rid of the joint decree, it was essential for the appellant, the State of Punjab, to include both the joint decree holders in the appeal. In the absence of one joint-decree holder, the appeal is not properly framed. It follows that the State appeal against Nathu Ram alone cannot proceed.”

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 25 of 58 While holding so, the argument on behalf of the State

that Labhu Ram had an equal share in the land acquired

and, therefore, the appeal against Nathu Ram alone could

deal with half the amount of the award was rejected,

reasoning thus:

“10. …The mere record of specific shares in the revenue records is no guarantee of their correctness. The appellate court will have to determine the share of Nathu Ram and necessarily the share of Labhu Ram in the absence of his legal representatives. This is not permissible in law. Further, the entire case of Labhu Ram and Nathu Ram, in their application to the Government for the appointment of an arbitrator, was that the land jointly belonged to them and had been acquired for military purposes, that a certain amount had been paid to them as compensation, that they received that amount under protest and that they were entitled to a larger amount mentioned in the application and also for the income tax they would have to pay on account of the compensation received being added to their income. Their claim was a joint claim based on the allegation that the land belonged to them jointly. The award and the joint decree are on this basis and the appellate court cannot decide on the basis of the separate shares.”

The aforesaid observations make it clear that a mere

assertion that surviving party’s own share could be

determined would not save the proceeding from abatement

on non-substitution of the legal representatives of the

deceased co-sharer if the pleadings reflected a joint claim

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 26 of 58 based on an allegation that the subject matter of the suit

belonged to them jointly.

21. In Venigalla Koteswaramma vs. Malampati

Suryamba and Others20, a suit was instituted, inter alia,

for partition, separate possession of plaintiff’s one-fourth

share and recovery of mesne profits in respect of immovable

properties described in Schedule A and movable properties

described in Schedule B of the plaint. The plaintiff pleaded,

inter alia, that plaintiff and defendants 1 to 3 were siblings,

born from the first wife of the propositus; on death of his first

wife, propositus married another lady on whom suit

properties vested after the death of the propositus; however,

the second wife died intestate and issue less; as a result, the

plaintiff and defendants 1 to 3 became owners of the suit

properties, each having one-fourth share. The said suit was

instituted by impleading several other defendants who had

been intermeddling with the suit properties. In the suit, the

defendants 1 to 3 supported the plaintiff’s case. However, the

other defendants contested the suit by setting up their rights

through the second wife of the propositus either under an

20 Referred to in Footnote 7

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 27 of 58 agreement or a Will, or other instruments. The trial court

discarded the Will and the agreement and decreed the suit

in part while excluding certain properties. Against the trial

court decree, two separate appeals were filed. One by those

who claimed under the agreement; and the other by those

who claimed under the Will. During the pendency of the

appeal, defendant no.2 died, but no application was made for

substitution of his legal representatives. The High Court,

however, proceeded to decide the appeals on merit by

dismissing the appeal of those who claimed under the Will

and allowing the appeal of those who claimed under the

agreement. As a result, the property covered by the

agreement was excluded from partition. Against such

modification of the decree, the plaintiff filed an appeal by

special leave before this Court. In the appeal before this

Court, one of the points urged was that the whole appeal

before the High Court had abated due to non-substitution of

the legal representatives of deceased defendant no.2 and,

therefore, the High Court’s decree is liable to be set aside. This Court accepted the submission and after surveying

several decisions including five-Judge Bench decision of this

Court in Sardar Amarjit Singh (supra) observed: Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 28 of 58

“45.1. When we apply the principles aforesaid to the present case, it is not far to seek that the said appeal by Defendants 16 to 18, after having abated against Defendant 2 could not have been proceeded against the surviving respondents i.e., the plaintiff and Defendants 1 and 3. This is for the simple reason that the trial court had specifically returned the findings that the agreement Ext. B-10 was not valid and Defendants 16 to 18 (appellants of AS No.1887 of 1988) derived no rights thereunder. The trial court has also ordered that Defendants 13, 14 and 16 were liable for mesne profits in respect of the immovable properties in their possession belonging to Annapurnamma till they deliver possession of those items to plaintiff and defendants 1 to 3. Such findings in relation to the invalidity of the agreement Ext. B-10 and consequential decree for partition, for delivery of possession and for recovery of mesne profits attained finality qua Defendant 2 Malempati Radha Krishnamurthy; and his entitlement to one-fourth share in the suit properties (including the property covered by Ext. B-10) also became final when the appeal filed by Defendant 16 to 18 abated qua him. If at all the appeal was proceeded with and the alleged agreement Ext. B-10 was upheld (which the High Court has indeed done), inconsistent decrees were bound to come in existence and have in fact come in existence.

45.2. As noticed, the High Court has proceeded to hold that Ext. B-10 agreement is valid and binding on the plaintiff and Defendants 1 to 3.

This part of decree is in stark contrast, and is irreconcilable, with the decree in favour of Defendant 2 which has attained finality that the said agreement Ext. B-10 is neither valid nor binding on Defendant 2. The High Court has gone a step further to say that the plaintiff and Defendants 1 to 3 were under obligation to execute sale deed in favour of defendant 16 to

18. Though making of such an observation in this suit, that heirs of Annapurnamma were under obligation to execute a sale deed in favor

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 29 of 58 of defendant 6 to 18, remains seriously questionable in itself but, in any event, this observation could not have been made qua the deceased Defendant 2.

46. When the inconsistencies galore are writ large on the face of the record, the inescapable conclusion is that the appeal filed by Defendants 16 to 18 could not have proceeded further after its abatement against Defendant 2 (Respondent

3).” (Emphasis supplied)

22. In Sunkara Lakhminarasamma vs. Sagi Subba

Raju and Others21, three suits were instituted. Suits A and

B were, inter alia, for: (a) partition; (b) setting aside

alienation; and (c) eviction of certain defendants from some

of the properties. Suit C was for specific performance of an

agreement to sell in respect of one of the suit properties. Trial

court dismissed suits A and B, but partly decreed suit C to

the extent of one-third of the property. The first appellate

court affirmed the decree. Three second appeals were filed

before the High Court. Two second appeals arising from suits

A and B were dismissed whereas second appeal arising from

suit C was allowed and the suit for specific performance was

decreed fully in terms prayed for. Before this Court, the

contentions of appellants i.e., plaintiffs in suits A and B were

that Wills relied by defendants were not proved; moreover,

21 (2019) 11 SCC 787

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 30 of 58 those bequests conferred no right, therefore, remaining

defendants, who claimed as transferees from the legatee,

were liable to be evicted. The respondents in the aforesaid

case, refuted those contentions and pleaded that the appeals

were not maintainable since a number of defendants

(purchasers from the legatee), were deleted from the array of

parties, and some of the defendants have died and their legal

representatives were not brought on record; as a result, the

decree passed in favour of such defendants had attained

finality. In other words, the validity of the Wills as well as the

sale deeds stood confirmed qua the deceased/deleted

defendants and, therefore, the appeals, pending against

other defendants, were liable to be dismissed in view of the

fact that if any order is passed adverse to the interest of the

remaining defendants (i.e., respondents in the appeal), it

would be in conflict with the judgment and decree which

stood confirmed as against the deceased/ deleted

defendants. Accepting the aforesaid submissions of the

respondents, a three-Judge Bench of this Court held:

“13. In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 31 of 58 the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject-matter. One decree would be in favor of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject matter. The subject matter in the suit is the validity of the two Wills. The courts including the Division Bench of the High Court have consistently held that the two Wills are proved, and thus Veeraswamy being the beneficiary under the two Wills had become the absolute owner of the suit properties in question. Such decree has attained finality in favor of the defendants who are either deleted or dead and whose legal representatives have not been brought on record. In case these appeals are allowed in respect of the other defendants, the decree to be passed by this court in these appeals would definitely conflict with the decree already passed in favour of the other defendants.

14. As mentioned supra, the court cannot be called upon to make two inconsistent decrees about the same subject matter. In order to avoid conflicting decrees, the court has no alternative but to dismiss the appeals in their entirety.

15. In view of the above, the appeals fail not only on the ground of non-maintainability, but also on merits, and are dismissed.” (Emphasis supplied)

23. In Budh Ram and Others vs. Bansi and Others22

plaintiffs instituted a suit for declaration to the effect that

they and proforma defendant no.6 were co-owners and co-

22 (2010) 11 SCC 476

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 32 of 58 sharers in joint possession to a certain extent of the property

in dispute. They also prayed for permanent prohibitory

injunction to restrain the defendants 1 to 5 from ousting

them. Defendant no.6, namely, Smt Parwatu, did not enter

appearance in the suit. However, defendants 1 to 5, who were

appellants before this Court, contested the suit by claiming

title over the suit land through adverse possession. The trial

court decreed the suit in favour of the plaintiffs and

defendant no.6. Against the trial court decree the defendants

1 to 5 preferred an appeal to the High Court in which

defendant no.6 was arrayed as one of the respondents.

However, during the pendency of appeal, defendant no.6 died

but no substitution was brought within time. Later, when

substitution application was filed, it was dismissed for want

of sufficient cause for the delay. Consequent thereto, the

High Court held that as the trial court had passed a joint

decree, the appeal stood abated in toto. Challenging the

order of the High Court, appeal was laid before this Court.

Affirming the order of the High Court, this Court observed:

“19. In the instant case a declaratory decree was passed in favor of the respondent plaintiffs and Smt Parwatu to the effect that they were co- owners, though, they had specific shares but were held entitled to be in joint possession. The

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 33 of 58 appellant applicants had sought relief against Smt Parwatu before the first appellate court as there was a decree in her favour, passed by the trial court where Smt Parwatu had been impleaded by the appellant applicants as pro forma respondent. In such a fact situation, she had a right to contest the appeal. Once a decree had been passed in her favor, a right had vested in her favor. On her death on 19-11-2000, the said vested right devolved upon her heirs. Thus, the appeal against Smt. Parwatu stood abated. In the instant case, the first appellate court rejected the application for condonation of delay as well as the substitution of LRs of Smt Parwatu, Respondent 4 therein.

20. The only question remains as to whether the appeal is abated in toto or only in respect of the share of Smt Parwatu. The High Court has rightly reached the conclusion that there was a possibility for the appellate court to reverse the judgment of the trial court and in such an eventuality, there could have been two contradictory decrees, one in favor of Smt Parwatu and the other, in favor of the present appellants. The view taken by the High Court is in consonance with the law laid down by this court consistently. The facts of the case do not warrant any further examination of the matter.” (Emphasis supplied)

24. In Pandit Sri Chand and Others vs. Jagdish

Parshad Kishan Chand and Others23 five persons stood

sureties for satisfaction of the decree under a common surety

bond which recited that the five sureties mortgaged the

properties specified in the schedule thereto and jointly and

severally agreed that if any decree was passed against X they

23 Refer to Footnote 7

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 34 of 58 shall comply with the same and in default the amount

payable under the decree subject to a ceiling shall be realized

from the properties mortgaged. In the suit, decree was

passed which was put to execution. Sureties raised multiple

objections to execution of the decree against them. The

execution court rejected the objection and the appellate court

(i.e., the High Court) confirmed the order of the execution

court. The matter was appealed to this Court by three out of

the five sureties. During the pendency of the appeal here, one

of the appellants died. Application for bringing his LRs on

record being belated was dismissed for want of sufficient

cause for the delay. During hearing of the appeal, the

respondent counsel contended that the appeal had abated in

its entirety as the heirs had not been brought on record and

the ground on which the judgment of the High Court

proceeded was common to all the parties. Accepting the

submission of the respondent counsel, this Court held:

“6. …The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by Basant Lal has become final. In the appeal filed by the appellants 1 and 3 if this court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 35 of 58 from liability under the bond, there would unquestionably be inconsistent orders -- one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not enforceable.

xxx xxx xxx

9. When the decree in favor of the respondents is joint and indivisible, the appeal against the respondents, other than the deceased respondent cannot be proceeded with if the appeal against the deceased respondent has abated.”

25. The underlying principle in the aforesaid decisions is

that in respect of the subject matter of a suit or a proceeding

arising therefrom, the court cannot pass inconsistent

decrees. In consequence, if, due to non-substitution of LRs

of a deceased party, the decree qua the deceased party has

attained finality by abatement of proceedings qua him, the

Court cannot proceed further if a reversal or modification of

the decree under appeal would result in conflicting or

inconsistent decrees. Therefore, in such a situation, the

appeal would abate in its entirety.

ORDER XLI RULE 4 CPC CANNOT PREVENT ABATEMENT OF AN APPEAL OF THE DECEASED CO-APPELLANT ON NON-SUBSTITUTION OF HIS LRS

26. Now, we shall consider whether the provisions of

Order XLI Rule 4 of CPC can prevent abatement of an appeal

of the deceased co-appellant on non-substitution of his LRs.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 36 of 58

27. Order XLI Rule 4 of CPC provides that 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 defendants, any one

of the plaintiffs or the defendants may appeal from the whole

decree, and thereupon the appellate court may reverse or

vary the decree in favor of all the plaintiffs or defendants, as

the case may be.

28. Interplay between the provisions of Order XXII and

Order XLI Rule 4 of CPC came for consideration before a

three-Judge Bench of this Court in Rameshwar Prasad and

Others vs. Shambehari Lal Jagannath and Another24. In

that case nine persons including one Kedar Nath instituted

a suit for ejectment and recovery of rent against two

defendants on the allegation that defendant 1 was the

tenant-in-chief who had sub-let the premises to defendant 2.

The suit for ejectment was decreed against both the

defendants, and for arrears of rent against defendant 1. On

appeal by defendant 2, the District Judge set aside the decree

for ejectment against defendant 2 and confirmed the rest of

24 1963 SCC OnLine SC 146 : AIR 1963 SC 1901 : (1964) 3 SCR 549

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 37 of 58 the decree against defendant 1. Against this decree, 9

original plaintiffs filed second appeal in the High Court.

During the pendency of appeal, appellant 3 died. No

application for bringing his legal representatives on the

record was made within the prescribed time. Later, however,

two applications were filed in the High Court. One, for

condonation of the delay in filing the application for

substitution and the other for substitution in which it was

prayed that the sons of Kedar Nath, the deceased, be

substituted in place of the deceased. Those two applications

were rejected with the result that the appeal stood abated as

against Kedar Nath. When the appeal of the appellants, other

than Kedar Nath, came up for hearing, a preliminary

objection was taken for the respondent that the entire appeal

had abated. On behalf of the surviving appellants it was

contended that the deceased belonged to a joint Hindu family

and other members of the family were already on the record

and that it was not necessary to bring on record any other

person. The court allowed parties to file proof of the deceased

being a member of the joint Hindu family. On exchange of

affidavits in that regard, a serious dispute regarding

existence of a joint Hindu family surfaced. Consequently, at

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 38 of 58 the hearing of the appeal, the only point urged on behalf of

the surviving appellants was that they were competent to

continue the appeal in view of Order XLI Rule 4 of CPC. This

contention, however, was rejected by the High Court and the

appeal was declared to have abated. Aggrieved by this, the

appellants appealed to this Court. One of the contentions

raised before this court was that the surviving appellants

could have instituted the appeal against the entire decree in

view of the provisions of Order XLI Rule 4 of the Code; that

they were, therefore, competent to continue the appeal even

after the death of Kedar Nath and that the court could have

reversed or varied the whole decree in favor of all the original

plaintiffs and could have granted relief with respect to the

rights and interests of Kedar Nath as well. Rejecting the

aforesaid contention, this Court, in reference to the

provisions of Oreder XLI Rule 1 of CPC, held:

“These provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire decree. The second appeal filed in the High Court was not filed by any one or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and, therefore, was not an appeal to which the provisions of Rule 4 of Order 41 could apply.

The appeal could not have been taken to be an appeal filed by some of the plaintiffs against the whole decree in pursuance of the provisions of

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 39 of 58 Rule 4 of Order 41 from the date when the appeal abated so far as Kedar Nath was concerned. If the appeal could be treated to have been so filed, then, it would have been filed beyond the period prescribed for the appeal. At that time, the decrees stood against the surviving plaintiffs and the legal representatives of Kedar Nath. The legal representatives could not have taken advantage of Rule 4 of Order 41. It follows that Rule 4 of Order 41 would not be available to the surviving plaintiffs at that time.

Further, the principle behind the provisions of Rule 4 seems to be that any one of the plaintiffs or defendants, in filing such an appeal, represents all the other non-appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favor of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Kedar Nath was alive when the appeal was filed and was actually one of the appellants. The surviving appellants cannot be said to have filed the appeal as representing Kedar Nath. Kedar Nath’s appeal has abated and the decree in favor of the respondents has become final against his legal representatives. His legal representatives cannot eject the defendants from the premises in suit. It will be against the scheme of the Code to hold that Rule 4 of Order 41 empowered the Court to pass a decree in favor of the legal representatives of the deceased on hearing an appeal by the surviving appellants even though the decree against him has become final. This court said in State of Punjab versus Nathu Ram:

“The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in absence of the legal representatives of the deceased respondent, the appellate court cannot determine anything

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 40 of 58 between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the court will do is one to which exception can or cannot be taken.” No question of the provisions of Rule 4 of Order 41 overriding the provisions of Rule 9 of Order 22 arises. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of Order 41 applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the plaintiffs the provisions of Order 41, Rule 4 became unavailable. Order 22 operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on record within the period of limitation. If that is not done the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of Rule 9 of Order 22 and those of Rule 4 of Order 41 CPC.

They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.

We do not consider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the correct view that the appellate court has no power to proceed with the appeal and to reverse and vary the decree in favor of all plaintiffs or defendants under Order 41, Rule 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under Order 22 Rule 3.”

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 41 of 58

29. The decision of this Court in Rameshwar Prasad

(supra) was followed in Pandit Sri Chand (supra) and the

same principle of law has been adopted in a recent two-Judge

Bench decision of this Court in Goli Vijayalakshmi and

Others vs. Yenduj Sathiraju (Dead) through LRs and

Others25 where this Court declined to accept the argument

that despite non-substitution of LRs of a deceased appellant,

the other appellants could prosecute the appeal with the aid

of Order XLI Rule 4 of CPC. The relevant portion of the

judgment is extracted below:

“23. The submission of the learned counsel for the appellants is that even if the appeals stood abated qua Appellant 2, the other appellants would be entitled to prosecute the appeals relying on the principle of Order 41 Rules 4 and 33 CPC. Suffice it to say that once the appeal stood abated against Appellant 2 (Defendant 2) and the decree which stands confirmed qua Appellant 2 (Defendant 2) cannot indirectly be reopened to challenge at the behest of persons claiming through him by relying on provisions of Order 41 Rules 4 and 33 CPC as prayed for.”

30. In Mahabir Prasad vs. Jage Ram and Others26,

this Court explained Rameshwar Prasad (supra) in the light

of an earlier decision of this Court in Ratan Lal Shah vs.

Firm Lalmandas Chhadammalal27 and thereby limited its

25 (2019) 11 SCC 352 26 (1971) 1 SCC 265 27 (1969) 2 SCC 70

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 42 of 58 applicability to a situation where the deceased party was a

co-appellant and not the one impleaded as a proforma-

respondent. In Mahabir Prasad (supra) this Court held that

if a decree is made on common ground against the plaintiffs

or the defendants and the appeal against the same is filed by

any one or some of the plaintiffs, or defendants, as the case

may be, by impleading the remaining of those plaintiff(s) or

defendant(s) as proforma-respondent(s), on non-substitution

of LRs of such proforma respondent(s) the appeal would not

abate as the appellants would be entitled to prosecute the

appeal with the aid of Order XLI Rule 4 of CPC. The relevant

portion of the judgment is extracted below:

“5. In support of their view the High Court relied upon the judgment of this court in Rameshwar Prasad v. Shyam Beharilal Jagannath. That was a case in which nine persons instituted a suit for a decree in ejectment and for recovery of rent against two defendants and obtained a decree. In appeal the District Judge set aside the decree, against one of the defendants. The plaintiffs filed a second appeal in the High Court and when the appeal was pending one of the plaintiffs (appellants in the High Court) died. No application for bringing his legal representatives on the record was made within the prescribed time. The respondents objected that the entire appeal had abated because the interest of the surviving appellants and of the deceased appellant was joint and indivisible and that in the event of the success of the appeal there would be two inconsistent and contradictory decrees. The surviving appellants claimed that the appeal was maintainable on the ground that without

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 43 of 58 impleading the plaintiff who had died they could have appealed against the entire decree in view of the provisions of Order 41, Rule 4 of the Code of Civil Procedure and on that account they were competent to continue the appeal, even after the death of one of the joint decree holders and abatement of the appeal so far as he was concerned, and the court had the power to hear the appeal and to reverse or vary the whole decree. This court held that the provisions of Order 41, Rule 4 of the Code of Civil Procedure were not applicable for the second appeal in the High Court was filed by all the plaintiffs jointly, and the surviving appellants could not be said to have filed the appeal as representing the deceased appellant. The Court further held that the appellate court had no power to proceed to hear the appeal and to reverse or vary decree in favor of all the plaintiffs or defendants under Order 41, Rule 4 of the Code of Civil Procedure, when the decree proceeded on the ground common to all the plaintiffs, or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died, and the appeal abated in so far as he was concerned under Order 22, Rule 3 of the Code of Civil Procedure.

Rameshwar Prasad case is obviously distinguishable from the present case. In Rameshwar Prasad case all the plaintiffs whose suit had been dismissed had filed an appeal and thereafter one of them died and his heirs were not brought on the record. In the present case there is an order against the decree holders but all the decree holders did not appeal; only one of them appealed and the other two were joined as party respondents.

6. In a later judgment of this court in Ratan Lal Shah v. Firm Lalmandas Chhadammalal the plaintiffs obtained joint decree against two persons – Ratan Lal and Mohan Singh. Against the decree Ratan Lal alone appealed to the High Court of Allahabad. Mohan Singh was impleaded as a party respondent to the appeal. Notice of appeals sent to Mohan Singh was returned unserved, and no steps were taken to serve him with notice of the appeal. The High Court dismissed the appeal holding that there was a joint decree against Ratan Lal and

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 44 of 58 Mohan Singh in a suit founded on a joint cause of action and the decree against Mohan Singh had become final. The appellant could not, on that account claimed to be heard in his appeal; if he was heard and his claim was upheld, the High Court observed that there would be two conflicting decisions between the same parties and in the same suit based on the same cause of action. This court set aside the judgment of the High Court observing that even though Mohan Singh was not served with notice of appeal, the appeal filed by Ratan Lal was maintainable, in view of the provisions of Order 41 Rule 4 of the Code of Civil Procedure. In Ratan Lal Shah case this court allowed the appeal to be prosecuted, even though one of the joint decree-holders impleaded as a party respondent had not been served with the notice of appeal. In the present case one of the respondents had died and his heirs have not been brought on the record. No distinction in principle may be made between Ratan Lal Shah case and the present case. Competence of the appellate authority to pass a decree appropriate to the nature of the dispute in an appeal filed by one of several persons against whom a decree is made on a ground which is common to him and others is not lost clearly because of the person who was jointly interested in the claim has been made a party respondent and on his death his heirs have not been brought on the record. Power of the appellate court under Order 41, Rule 4, to vary or modify the decree of a subordinate court arises when one of the persons out of many against whom a decree or order has been made on a ground which was common to him and others has appealed. That power may be exercised when other persons who were parties to the proceeding before the subordinate court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons are either not impleaded as parties to the appeal or are impleaded as respondents. The view taken by the High Court cannot therefore be sustained.” (Emphasis supplied) Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 45 of 58

31. Upon consideration of the decisions on the interplay

between the provisions of Order XLI Rule 4 and Order XXII

of CPC qua abatement of an appeal, the law that emerges is

summarized below:

i. Rule 4 of Order XLI applies to the stage when an

appeal is filed and empowers one of the plaintiffs or

defendants to file an appeal against the entire decree in

certain circumstances. A plaintiff or defendant can take

advantage of this provision, but he may not. Therefore,

once an appeal is filed by all the plaintiffs or defendants

aggrieved by the decree, the provisions of Order XLI,

Rule 4 become unavailable.

ii. Rule 4 of Order XLI is to enable one of the parties to

a suit to obtain relief in appeal when the decree appealed

from proceeds on a ground common to him and others.

The court in such an appeal may reverse or vary the

decree in favour of all the parties who are having the

same interest as the appellant, even though they have

not appealed against the decree. This is so, because it

is not the law that when a decree is passed on a ground

common to all the parties, the appeal is to be filed by all

the parties or not at all.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 46 of 58 iii. Order XXII applies without exception to all

proceedings covered by it. It operates during the

pendency of a proceeding including an appeal and not

at its institution. Therefore, if an appellant dies during

the pendency of the appeal, his legal representatives

must be brought on record within the period of

limitation. If that is not done, the appeal by the deceased

appellant abates.

iv. Where an appeal is filed by any one or some of the

plaintiffs, or defendants, aggrieved by the decree, by

impleading other such plaintiff(s) or defendant(s) as

proforma-respondent(s), in the event of death of such

proforma-respondent, the benefit of the provisions of

Order XLI Rule 4 would be available to continue the

appeal regardless of substitution of LRs of such

proforma-respondent.

v. There is no inconsistency between the provisions of

Order XXII and those of Rule 4 of Order XLI CPC. They

operate at different stages and provide for different

contingencies. There is nothing common in their

provisions which make the provisions of one interfere in

any way with those of the other.

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 47 of 58 DECISIONS CITED ON BEHALF OF THE APPELLANTS

32. Now we shall consider the decisions cited by the

learned counsel for the appellants. The decisions cited by

the learned counsel for the appellant are referred to in

footnote 6, which shall be dealt with serially below:

(a) Delhi Development Authority vs. Diwan Chand

Anand and Others28: In this case two out of six

persons, in whose favour the deeds of conveyance were

executed, instituted a suit against the state-respondents

including DDA by impleading the remaining co-owners

as defendants. The suit was decreed by trial court

against which DDA filed appeal impleading plaintiffs as

well as other defendants, who were alleged co-owners,

as respondents. One of the plaintiff-respondent and

some of the defendant-respondent who were co-owners

died during the pendency of the appeal. On ground of

non-substitution of all the heirs of deceased plaintiff-

respondent and the legal representatives of the deceased

defendant-respondent(s) who were also one of the co-

owners, the appellate court declared the appeal to have

28 See Footnote 6

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 48 of 58 abated. When the matter travelled to this court, it was,

inter alia, argued on behalf of the appellant that the suit

was instituted by some of the co-owners for self and on

behalf of the other co-owners, as is permissible in law,

and since some of the heirs of the deceased plaintiff-

respondent were already on record, the appeal would not

abate on non-substitution of the legal representatives of

deceased defendant-respondent as their estate stood

duly represented by the other co-sharer, namely, the

plaintiff-respondent. In that context, this Court while

setting aside the decision of the High Court observed:

“34. As observed and held by this court in A. Vishwanatha Pillai29, the co-owner is as much an owner of the entire property as a sole owner of the property. No co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand, he has the right, title and interest in every part and parcel of the joint property. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. It is observed that, therefore, one co-owner can file a suit and recover the property against strangers and the decree would enure to all the co-owners. The aforesaid principle of law would be applicable in the appeal also. Thus, in the instant case, when the original plaintiffs -- two co- owners instituted the suit with respect to the entire suit land jointly owned by the plaintiffs as well as defendants 9 to 39 and when some of the respondent-defendants in appeal died, it can be said that estate is represented by others, more

29 A. Vishwanatha Pillai v. LAO, (1991) 4 SCC17

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 49 of 58 particularly the plaintiffs/heirs of the plaintiffs and it cannot be said that on not bringing the legal representatives some of the co-sharers, respondent- defendants in appeal, the appeal would abate as a whole.” (Emphasis supplied)

In our view, this decision would not be of much help

to the appellants herein because here there was no suit

by co-sharer(s) for self as well as for other non-suing co-

sharer. Even the appeal was jointly filed by both the

defendants against the decree and not by one of them

with the aid of Order XLI Rule 4 CPC. Therefore, the

surviving co-sharer was not representing the estate of

the deceased co-sharer.

(b) Sakharam (since deceased) Through LRs &

Another vs. Kishanrao30 : In this case one of the two

plaintiff-respondents in a second appeal died and the

High Court dismissed the appeal as having abated on

non-substitution of his LRs. In that context, this Court

while allowing the appeal observed:

“6. When two plaintiffs joined together and secured a decree of declaration and possession of an immovable property, the death of one of the decree holders will not make the second appeal abate. As against the surviving successful plaintiff, the cause of action survived. Abatement occurs only when the

30 See Footnote 6

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 50 of 58 cause of action does not survive upon or against the surviving party.”

In our view, the aforesaid decision, which is by a

two-Judge Bench, cannot be taken as a binding

precedent since it does not at all deal with the possibility

of conflicting or inconsistent decrees arising from

abatement of appeal qua the deceased plaintiff-

respondent. In fact, the judgment does not at all deal

with earlier binding precedents of larger Benches

including the one rendered by a five-Judge Bench which

we have discussed in the earlier part of this judgment.

We, therefore, hold the same to be per incuriam.

(c) Gurnam Singh (Dead) through LRs and Others vs.

Gurbachan Kaur (Dead) by LRs.31 : In this case, it was

held by this Court that where parties to an appeal had

expired and the legal representatives of the deceased

parties were not brought on record the proceedings

would abate and the decree passed in ignorance thereof

would be a nullity. In our view, this judgment is of no

help to the appellant.

31 See Footnote 6

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 51 of 58

(d) State of Punjab vs. Shamlal Murari32: This

decision does not deal with the issue of abatement. We,

therefore, find it not relevant for discussion.

(e) Baij Nath & Another vs. Ram Bharose and

Others33: In this case a Full Bench of the Allahabad

High Court held:

“36. …

1. If, in a suit, a plaintiff, makes a claim against a number of defendants on common grounds and all the defendants also contest the suit on common grounds and the suit is decided in favor of the plaintiff against all the defendants, an appeal filed by all the defendants can be heard in favor of the remaining defendants after one of the appealing defendants has died during the pendency of the appeal and his legal representatives have not been brought on record so that his appeal has abated, only if the rights and interests of the surviving defendants were not joint and indivisible with those of the deceased defendant, and in the event of the success of the appeal, it does not lead to two inconsistent and contradictory decrees.

2. While the appeal of the remaining defendants can be heard, the decision in it will not enure to the benefit of the legal representatives of the deceased defendant appellant.” (Emphasis supplied)

In our view, the above decision of the Allahabad High

Court makes it clear that the appeal filed can be heard

in favour of the remaining defendant-appellants only if

32 See Footnote 6 33 See Footnote 6

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 52 of 58 the rights and interests of the surviving defendants were

not joint and indivisible with those of the deceased

defendant, and in the event of the success of the appeal,

it does not lead to two inconsistent and contradictory

decrees which is also the law laid down by five-Judge

Bench of this Court in Sardar Amarjit Singh Kalra

(supra).

CONTINUANCE OF APPEAL MAY RESULT IN INCONSISTENT OR CONTRADICTORY DECREES

33. In the instant case, the civil suit was instituted by

the first respondent (i.e., Parasram), inter alia, for declaration

of title and possession of suit property by claiming that his

grandfather (i.e., Tej Singh) was the sole owner of the suit

property which he got constructed from his own funds and

was recorded as such in the municipal records since 1938;

that on his death in 1965, plaintiff’s father’s (i.e.,

Ramswarup) name was mutated in municipal records on

1.3.1967 and he became owner in possession; in between,

defendants presented application for mutation which was

rejected with liberty to them to bring a suit before competent

court, which they did not; that tenants have been residing in

the suit property since 1937 and they used to pay rent to the

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 53 of 58 plaintiff’s grandfather and on his death to the plaintiff’s

father; that on 9.10.1979, partition was carried out,

according to which, suit property came to the share of the

plaintiff and plaintiff’s name was recorded in municipal

records vide resolution dated 31.1.1981; that defendants

had been residing in the third floor of the disputed building

as tenants of previous owner on a monthly rent of Rs.50/-

p.m. and since 9.10.1979 they are tenants of the plaintiff;

that defendants encroached upon the vacant portion of the

ground floor of the disputed building and opened a Hotel for

their son, in respect of which plaintiff served notice on

12.12.82, but despite service of notice, possession has not

been handed over; that, in fact, defendants sublet certain

portion of ground floor to Raghuveer without the permission

of the plaintiff, for this reason also, plaintiff is entitled to

possession of the building from the defendants; that

defendants denied ownership of the plaintiff and on this

ground also plaintiff is entitled to possession. Thus, by

claiming termination of tenancy, suit was instituted.

34. Defendants Suresh Chandra and Ram Babu filed

written statement, inter alia, claiming that disputed building

has never been in the ownership of Tej Singh, if his name

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 54 of 58 was mutated in the revenue record it was by playing fraud.

Similarly, if father of the plaintiff got his name mutated it

was by fraud, which confers no right or title. Defendants

claimed title and possession over the suit property extending

for last 38 years as owners thereof. They denied tenancy and

claimed that father of the defendants, namely, Gokul Prasad,

received the property in mutual partition held with his

brothers, namely, Tej Singh, Jwala Prasad, Gajadhar Prasad

in the year 1947 and after the death of Gokul Prasad in the

year 1950, defendants became complete owners in

possession over disputed buildings. With the aforesaid

averments, they prayed for dismissal of the suit.

35. The trial court dismissed the suit, inter alia, holding

that plaintiffs failed to prove that they were the exclusive

owner of the suit property and they also failed to establish

that defendants were tenants thereof.

36. Aggrieved with the judgment and decree of the trial

court, the first respondent filed civil appeal. The first

appellate court allowed the appeal and decreed the plaintiff’s

suit, inter alia, holding that plaintiff is the owner of the suit

property; defendants’ father Gokul Prasad did not get the

property in partition, therefore defendants who claim

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 55 of 58 through Gokul Prasad are not the owners, rather are

tenants.

37. The aforesaid facts make it clear that the defendants

claimed a joint interest in the suit property flowing from their

father Gokul Prasad whereas the plaintiff claimed title

through his own father with an additional claim that the

defendants were his tenants through his predecessors-in-

interest. The first appellate court accepted plaintiff’s case

and held the plaintiff to be owner of the suit property and

defendants to be its tenants. In such circumstances, if, on

non-substitution of the legal representatives of one of the

defendant-appellants, the second appeal abated qua him, the

decree as against him, holding him to be tenant and plaintiff

the owner, attained finality. Therefore, if the second appeal

is allowed to proceed, on it being allowed, possibility of

conflicting and contradictory decrees, in respect of same

subject matter, coming into existence cannot be ruled out

because one, which attained finality, held the plaintiff to be

owner of the suit property and the deceased defendant its

tenant whereas the other could hold the surviving defendant

to be its owner. What is important is that both defendants

had set up a common defense of having a joint title over the

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 56 of 58 suit property flowing through their father, who, admittedly,

was not found owner by the first appellate court. In such

circumstances, the decree that came into existence was an

indivisible/inseparable decree and if the second appeal had

been allowed to proceed there was possibility of conflicting

decrees coming into existence, hence, abatement of the

second appeal qua the deceased defendant-appellant would

result in abatement of the entire second appeal. Issue (b) is

decided in the above terms.

CONCLUSIONS:

38. In the light of discussion above, we summarize our

conclusions as under:

(a) The finding returned by the High Court that there

was no sufficient cause for condonation of delay in filing

application for substitution and setting aside abatement

does not suffer from any illegality or perversity as to

warrant an interference.

(b) On abatement of second appeal qua the second

appellant Ram Babu, the entire second appeal abated as

continuance of the second appeal would have given rise

to a possibility of inconsistent decrees i.e., one in favour

of the plaintiff against the deceased defendant-appellant

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 57 of 58 and the other in favour of the surviving defendant

appellant, even though both defendants claimed joint

interest in the suit property flowing from their father.

(c) As the second appeal was jointly filed by the two

defendants, the benefit of the provisions of Order XLI

Rule 4 CPC was not available to the surviving defendant

appellant to continue with the second appeal and seek

for reversal or modification of the decree operating

against the deceased-appellant as well.

39. In view of our conclusions above, we find no merit in

these appeals. The same are accordingly dismissed. Pending

application(s), if any, stand disposed of. Parties to bear their

own costs.

……..….............................................J. (PAMIDIGHANTAM SRI NARASIMHA)

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

NEW DELHI;

JULY 18, 2025

Civil Appeal Nos……….of 2025 (SLP (C) Nos. 15900-15902/2022) Page 58 of 58