Holding

The High Court’s order rejecting the condonation applications is valid, and the second appeal abated in its entirety because the decree was joint and inseparable, rendering Order XLI Rule 4 inapplicable.

Summary

The plaintiff sued the defendants for title and possession of a house, alleging they were tenants; the trial court dismissed the suit, but the first appellate court declared the plaintiff the owner and the defendants tenants. The defendants filed a second appeal, but one co-defendant (Ram Babu) died during its pendency and his legal representatives were not substituted within the prescribed time, leading the High Court to declare the appeal abated. The defendants then sought condonation of delay to set aside the abatement and to substitute the deceased’s legal representatives, but the High Court rejected both applications. The Supreme Court examined whether the High Court’s rejection was legally infirm and whether the appeal abated wholly or partially. It held that the High Court’s order was sound and that, because the decree was joint and inseparable, the entire second appeal abated to avoid contradictory decrees, and Order XLI Rule 4 could not revive the appeal. Consequently, the appeals were dismissed.

Issues considered

Whether the order rejecting the applications for condonation of delay and substitution of legal representatives of the deceased appellant is legally infirm.
Whether the second appeal abated wholly, partially, or not at all due to non‑substitution of the legal representatives of the deceased defendant‑appellant.

Legislation cited

Code of Civil Procedure, 1908s. Order XLI Rule 4, s. Order XXII

Headnote

Issue for Consideration Whether the order rejecting application(s) seeking condonation of delay for setting aside abatement and substitution of legal representatives of deceased appellant suffers from any legal infirmity; if the answer to (a) is in the negative, whether the wholly or partially, or not at all, on account of non-substitution of LRs of deceased defendant-appellant no.2. Headnotes† Code of Civil Procedure, 1908 – Or.XXII; Or.XLI r.4 – Plaintiff filed suit against the defendants (‘SC’ and ‘RB’), inter alia, for

Subjects

Order XXII of CPCOrder XLI Rule 4 of CPCAbatement of appealNon‑substitution of a deceased partyLegal representativesJoint and inseparable decreeInconsistent decreesCPC Order XXII Rule 3CPC Order XXII Rule 4

Judgment

[2025] 7 S.C.R. 1233 : 2025 INSC 873

Suresh Chandra (Deceased) Thr. Lrs. & Ors.
v.
Parasram & Ors.
(Civil Appeal No(s). 9791-9793 of 2025)
18 July 2025
[Pamidighantam Sri Narasimha and Manoj Misra,* JJ.]

Issue for Consideration
Whether the order rejecting application(s) seeking condonation
of delay for setting aside abatement and substitution of legal
representatives of deceased appellant suffers from any legal
infirmity; 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.

Headnotes†
Code of Civil Procedure, 1908 – Or.XXII; Or.XLI r.4 – Plaintiff
filed suit against the defendants (‘SC’ and ‘RB’), inter alia, for
declaration of title and possession of suit property claiming
that the defendants were his tenants – Defendants denied
tenancy and claimed title and possession over the suit property
through their father – Suit dismissed by trial court – Appeal
filed by plaintiff, allowed by appellate court – LRs of ‘SC’; ‘RB’
filed second appeal however, during the pendency thereof, ‘RB’
died and his LRs were not brought on record within time –
High Court declared the appeal to have abated due to non-
substitution of the LRs of ‘RB’ within time – Applications filed
for condonation of delay in applying to set aside abatement
and for substitution of the LRs of the deceased defendant
were also rejected – Challenge to:
Held: First appellate court accepted plaintiff’s case and held the
plaintiff to be owner of the suit property and defendants to be its
tenants – Thus, 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

* Author
1234 [2025] 7 S.C.R.

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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 – Thus, on
abatement of second appeal qua the second appellant, 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
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 – As the second appeal was jointly filed
by the two defendants, the benefit of the provisions of Or.XLI, r.4
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 – Further,
there was no sufficient cause for condonation of delay in filing
application for substitution and setting aside abatement – Finding
of the High Court not interfered with – No merit in the present
appeals. [Paras 37, 38]

Code of Civil Procedure, 1908 – Or.XXII – Abatement of an
appeal on non-substitution of a deceased party, partial or
whole:
Held: 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 – 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 –
Law summarized. [Para 17]
Code of Civil Procedure, 1908 – Or.XLI, r.4; Or.XXII – Interplay
between, qua abatement of an appeal – Law summarized –
Or.XLI, r.4 cannot prevent abatement of an appeal of the
deceased co-appellant on non-substitution of his LRs – There
is no inconsistency between the provisions of Or.XXII and
those of r. 4 of Or.XLI. [Para 31]
[2025] 7 S.C.R. 1235

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

Case Law Cited
Delhi Development Authority v. Diwan Chand Anand and Others
[2022] 18 SCR 1053 : (2022) 10 SCC 428 – distinguished.
Sakharam (since deceased) Through LRs & Another v. Kishanrao
[2022] 6 SCR 901 : 2022 SCC OnLine SC 2035 – per incuriam.
Gurnam Singh (Dead) through LRs and Others v. Gurbachan Kaur
(Dead) by LRs. [2017] 3 SCR 901 : (2017) 13 SCC 414 – held
inapplicable.
Sardar Amarjit Singh Kalra (Dead) by LRs and Others v. Pramod
Gupta (Smt.) (Dead) by LRs and Others [2002] Supp. 5 SCR
350 : (2003) 3 SCC 272; State of Punjab v. Nathu Ram [1962]
SCR 636 : AIR 1962 SC 89; Ram Sarup v. Munshi [1963] SCR
858 : AIR 1963 SC 553; Hemareddi v. Ramachandra [2019]
7 SCR 262 : (2019) 6 SCC 756; Venigalla Koteswaramma v.
Malampati Suryamba and Others [2021] 1 SCR 725 : (2021) 4
SCC 246; Sunkara Lakhminarasamma v. Sagi Subba Raju and
Others [2018] 14 SCR 222 : (2019) 11 SCC 787; Budh Ram and
Others v. Bansi and Others [2010] 9 SCR 674 : (2010) 11 SCC 476;
Pandit Sri Chand and Others v. Jagdish Parshad Kishan Chand
and Others [1966] 3 SCR 451 : AIR 1966 SC 1427; Rameshwar
Prasad and Others v. Shambehari Lal Jagannath and Another
[1964] 3 SCR 549 : AIR 1963 SC 1901; Goli Vijayalakshmi and
Others v. Yenduj Sathiraju (Dead) through LRs and Others (2019)
11 SCC 352; Mahabir Prasad v. Jage Ram and Others [1971] 3
SCR 301 : (1971) 1 SCC 265; Ratan Lal Shah v. Firm Lalmandas
Chhadammalal [1970] 1 SCR 296 : (1969) 2 SCC 70; State of
Punjab v. Shamlal Murari [1976] 2 SCR 82 : (1976) 1 SCC 719 –
referred to.
Baij Nath & Another v. Ram Bharose and Others, AIR 1953 All
565 : 1953 SCC OnLine All 43 – referred to.

List of Acts
Code of Civil Procedure, 1908.

List of Keywords
Order XXII of Code of Civil Procedure, 1908 ; Order XLI r.4 of Code
of Civil Procedure, 1908; Abatement of appeal; Non-substitution of
a deceased party; Non-substitution of legal representatives (LRs)
1236 [2025] 7 S.C.R.

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of deceased defendant; Abatement of appeal of the deceased co-
appellant on non-substitution of LRs; Second appeal jointly filed by
two defendants; Second appeal abated wholly or partially; Entire
second appeal abated; Joint interest in the suit property; Defendants
claimed joint interest in the suit property flowing from their father;
Applications for condonation of delay for setting aside abatement
and substitution of legal representatives rejected; Predecessor-in
interest of the appellants; Conflicting and contradictory decrees;
Inconsistent decrees.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No(s).
9791-9793 of 2025
From the Judgment and Order dated 21.02.2022 and 04.08.2022
of the High Court of Madhya Pradesh at Gwalior in SA No. 446 of
2001 and MCC No(s). 700 and 697 of 2022, respectively

Appearances for Parties
Advs. for the Petitioner(s):
Jayant Mehta, Puneet Jain, Sr. Advs. Ms. Christi Jain, Mann Arora,
Harsh Jain, Om Sudhir Vidyarthi, Ms. Akriti Sharma, Ojusya Joshi.
Advs. for the Respondent(s):
N.K. Mody, Sr. Adv., Ms. Ishita M Puranik, Ms. Jigisha Agrawal,
Suresh Kumar Bhan, Hari Sahteshwar, Praveen Swarup.

Judgment / Order of the Supreme Court

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

1 Second Appeal No.446 of 2001
[2025] 7 S.C.R. 1237

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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.
(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.

2 The High Court of Madhya Pradesh at Gwalior
3 MCC No.697 and MCC No.700 of 2022
1238 [2025] 7 S.C.R.

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(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.
(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
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

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
[2025] 7 S.C.R. 1239

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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.

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 respondent cited certain decisions7 which we shall
deal with, if considered necessary.

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.
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.
1240 [2025] 7 S.C.R.

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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., 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,

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
[2025] 7 S.C.R. 1241

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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 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

10 Article 121 of the Schedule to The Limitation Act, 1963
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.
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.
1242 [2025] 7 S.C.R.

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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 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.

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.
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.
[2025] 7 S.C.R. 1243

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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 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

16 (2003) 3 SCC 272
1244 [2025] 7 S.C.R.

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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 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
[2025] 7 S.C.R. 1245

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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
1246 [2025] 7 S.C.R.

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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 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.
[2025] 7 S.C.R. 1247

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

(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)

15. In State of Punjab vs. Nathu Ram 17, 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

17 Referred to in Footnote 7
1248 [2025] 7 S.C.R.

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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 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 property in

18 Referred to in Footnote 7
[2025] 7 S.C.R. 1249

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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.
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
1250 [2025] 7 S.C.R.

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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.
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 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.
[2025] 7 S.C.R. 1251

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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
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

19 Referred to in Footnote 7
1252 [2025] 7 S.C.R.

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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 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
[2025] 7 S.C.R. 1253

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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.”
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 based on an allegation that the subject matter of the
suit belonged to them jointly.
1254 [2025] 7 S.C.R.

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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 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:
“45.1. When we apply the principles aforesaid to the
present case, it is not far to seek that the said appeal

20 Referred to in Footnote 7
[2025] 7 S.C.R. 1255

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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
1256 [2025] 7 S.C.R.

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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, 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

21 (2019) 11 SCC 787
[2025] 7 S.C.R. 1257

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

parties along with the absence of legal representatives of
a number of deceased defendants will prevent the court
from hearing 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-sharers in joint possession to a certain
extent of the property in dispute. They also prayed for permanent

22 (2010) 11 SCC 476
1258 [2025] 7 S.C.R.

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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 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
[2025] 7 S.C.R. 1259

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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 from liability under the bond,
there would unquestionably be inconsistent orders -- one
passed by the High Court holding that the surety bond

23 Refer to Footnote 7
1260 [2025] 7 S.C.R.

Supreme Court Reports

was enforceable, and the other, the view of this Court that
it is not enforceable.

xxxx xxxx xxxx
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.
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

24 [1964] 3 SCR 549 : 1963 SCC OnLine SC 146 : AIR 1963 SC 1901
[2025] 7 S.C.R. 1261

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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 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:
1262 [2025] 7 S.C.R.

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“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 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:
[2025] 7 S.C.R. 1263

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

“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 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
1264 [2025] 7 S.C.R.

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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.”
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 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

25 (2019) 11 SCC 352
26 (1971) 1 SCC 265
27 (1969) 2 SCC 70
[2025] 7 S.C.R. 1265

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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
1266 [2025] 7 S.C.R.

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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 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.
[2025] 7 S.C.R. 1267

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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)

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,
1268 [2025] 7 S.C.R.

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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.
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.

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-

28 See Footnote 6
[2025] 7 S.C.R. 1269

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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 particularly the plaintiffs/heirs of the
plaintiffs and it cannot be said that on not bringing

29 A. Vishwanatha Pillai v. LAO, (1991) 4 SCC17
1270 [2025] 7 S.C.R.

Supreme Court Reports

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
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.

30 See Footnote 6
[2025] 7 S.C.R. 1271

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

(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.
(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. …
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.
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)

31 See Footnote 6
32 See Footnote 6
33 See Footnote 6
1272 [2025] 7 S.C.R.

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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 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 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.
[2025] 7 S.C.R. 1273

Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors.

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 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
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
1274 [2025] 7 S.C.R.

Supreme Court Reports

of having a joint title over the 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 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.

Result of the case: Appeals dismissed.

†
Headnotes prepared by: Divya Pandey