In Kishorilal (D) through LRs v. Gopal, the Supreme Court reaffirmed that abatement under the CPC must not be applied mechanically, especially in specific performance disputes involving lis pendens transfers, clerical errors, and long-pending civil appeals.
New Delhi (ABC Live): The Supreme Court of India has clarified that an appeal does not automatically abate merely because parties fail to substitute one legal heir within the limitation period. Instead, courts must first examine whether the deceased party’s estate already stands effectively represented on record.
In Kishorilal (D) through LRs v. Gopal & Ors , the Court restored the two first appeals that the High Court had dismissed as abated. The ruling reinforces a core principle of civil procedure: courts must apply abatement rules with care and avoid using technical lapses to defeat decisions on the merits.
Background of the Dispute
The dispute began as a suit for declaration and injunction. Later, the plaintiff amended the pleadings to seek specific performance of an agreement to sell immovable property. During the pendency of the suit, the original owner, Kishorilal, sold the property to third parties. As a result, those purchasers became transferees lis pendens.
The trial court decreed the suit in favour of the plaintiff, Gopal. Kishorilal and the purchasers jointly filed a first appeal. During the appeal, Kishorilal died, and the court substituted all four of his legal heirs. Subsequently, one heir—Murarilal—also died. His legal heirs did not come on record within the limitation.
Years later, the High Court dismissed the appeal as abated and dismissed a connected appeal as a consequence. The aggrieved parties challenged those orders before the Supreme Court.
What Is Abatement Under the Code of Civil Procedure?
Abatement means the automatic termination of a suit or appeal due to a legal event, most commonly the death of a party, followed by failure to substitute legal representatives in time.
Under the Code of Civil Procedure, 1908:
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Order XXII Rule 1 provides that a case does not abate if the right to sue survives.
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Order XXII, Rules 3 and 4 require the substitution of legal representatives when a plaintiff or defendant dies.
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Order XXII Rule 9 allows revival of an abated case upon showing sufficient cause.
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Order XXII Rule 11 applies these rules to appeals.
However, courts must not treat abatement as an automatic or mechanical outcome. Before declaring abatement, courts must examine whether the deceased party’s estate already stands substantially represented and whether the case can still proceed fairly and effectively.
Issues Before the Supreme Court
The Supreme Court examined three central questions:
- Did the appeal abate because Murarilal’s legal heirs were not substituted in time?
- Did earlier High Court orders rejecting abatement bind the court at a later stage?
- Could impleadment of Murarilal’s heirs cure any procedural defect?
Key Findings of the Court
1. Substantial Representation Defeats Automatic Abatement
The Court held that this case did not involve total non-representation of the vendor’s estate. Three legal heirs of Kishorilal remained on record. In addition, the transferees’ lis pendens also participated in the appeal.
Because the estate already stood substantially represented, failure to substitute one heir did not cause abatement. The Court distinguished between a complete absence of legal representatives and a partial omission where representation continues.
2. Vendor Is Necessary, but Every Heir Is Not
The Court reaffirmed settled law that in suits for specific performance, the vendor remains a necessary party even after selling the property. Such decrees enforce contractual duties, not merely the transfer of title.
At the same time, the Court clarified that the law does not demand the substitution of every individual heir at all times. What matters is the representation of the vendor’s estate, not procedural arithmetic.
3. Earlier Orders Barred a Later Reversal
The High Court had earlier held that the appeal had not abated and even allowed the impleadment of Murarilal’s heirs as pro forma respondents. The Supreme Court held that the High Court could not later reverse that finding at the final stage.
The doctrine of res judicata applies between different stages of the same proceeding. Once a court decides an issue, it cannot reopen it later without review.
4. Clerical Errors Cannot Decide Substantive Rights
An earlier order mistakenly directed the deletion of “Kishorilal” instead of “Murarilal.” The Supreme Court treated this as a clerical error. Courts may correct such mistakes at any stage, and parties cannot use them to secure dismissal of appeals.
Case Law Considered by the Supreme Court
The Supreme Court did not decide this case in isolation. It examined, reconciled, and distinguished a consistent line of precedent on abatement, estate representation, and specific performance.
| Case | Year | Legal Issue | Principle Laid Down | Application in This Judgment |
|---|---|---|---|---|
| Lala Durga Prasad v. Lala Deep Chand | 1953 | Specific performance & subsequent purchaser | Vendor is a necessary party; purchaser joins only to pass title | Reaffirmed, but clarified that the substitution of every heir is not mandatory if the estate is represented |
| R.C. Chandiok v. Chuni Lal Sabharwal | 1970 | Nature of the specific performance decree | Decree enforces contractual obligations | Used to support vendor necessity without procedural rigidity |
| Dwarka Prasad Singh v. Harikant Prasad Singh | 1973 | Abatement after the vendor’s death | Appeal abates where the vendor’s estate is totally unrepresented | Distinguished by facts, representation existed here |
| Mahabir Prasad v. Jage Ram | 1971 | Non-substitution of some heirs | No abatement if the estate is represented | Applied directly |
| Bhurey Khan v. Yaseen Khan | 1995 | Abatement and heir omission | Avoid abatement where representation survives | Relied upon |
| Mohammad Arif v. Allah Rabbul Alamin | 1982 | Transferee as estate representative | The purchaser may represent the estate | Accepted with limits |
| K. Naina Mohamed v. A.M. Vasudevan Chettiar | 2010 | Purchaser representing the deceased party | The purchaser can represent the estate | Treated as supportive |
| Mithailal Dalsangar Singh v. Annabai Devram Kini | 2003 | Setting aside abatement | Justice-oriented approach required | Used to reject technical objections |
| Satyadhyan Ghosal v. Deorajin Debi | 1960 | Res judicata within the same case | Earlier decisions bind later stages | Applied to bar reversal |
| Y.B. Patil v. Y.L. Patil | 1976 | Finality of interlocutory findings | Earlier findings bind later proceedings | Relied upon |
| Bhanu Kumar Jain v. Archana Kumar | 2005 | Scope of res judicata | Decided issues cannot be reopened | Reinforced finality |
Role of Lis Pendens
The judgment also fits within the doctrine of lis pendens, which governs property transfers during litigation. The transferees acquired title subject to the outcome of the suit, and their presence on record reinforced the conclusion that the vendor’s estate never stood unrepresented.
For a detailed explainer, see:
Explained: lis pendens and subsequent purchaser rights (Tahir v. Isani v. Madan Waman Chodankar)
https://abclive.in/2025/08/29/explained-tahir-v-isani-v-madan-waman-chodankar/
Heirs, Representation, and Civil Litigation
The Court’s reasoning aligns with broader civil law principles governing heir disputes and party representation. Courts must focus on fairness and effective adjudication rather than rigid procedural counts.
A related ABC Live analysis appears here:
Ramesh Chand vs Suresh Chand: will disputes and heir representation
https://abclive.in/2025/09/08/ramesh-chand-vs-suresh-chand-will-disputes/
Lis Pendens at the Execution Stage
Similar issues often arise during execution when parties transfer property after a decree. The same principles of subservient title and continuity of representation apply.
For further reading:
Lis pendens in execution: transfers and enforceability
https://abclive.in/2025/12/19/lis-pendens-in-execution/
Conclusion
The Supreme Court’s ruling restores balance to the law of abatement under the CPC. It confirms that:
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Courts must not apply abatement rules mechanically.
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Effective representation of a deceased party’s estate defeats automatic abatement.
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In specific performance cases, vendor representation matters more than substitution of every heir.
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Courts must respect earlier rulings on abatement within the same case.
By restoring both appeals, the Court ensured that a long-pending property dispute would be decided on the merits rather than end on a technical lapse—reaffirming that procedure exists to serve justice, not replace it.
