Kishorilal (D) thr. LRs & Ors. v. Gopal & Ors.

 Background

The plaintiff (Gopal) instituted a suit for declaration, injunction, and later specific performance of an agreement to sell against Kishorilal. During pendency of the suit, Kishorilal sold the property to Brajmohan and Manoj (transferees lis pendens). The suit was decreed. In the first appeal, Kishorilal died and was substituted by four legal heirs. One heir (Murarilal) later died and his heirs were not substituted within limitation, leading the High Court to dismiss the appeal as abated.

 

Issues Framed

1. Whether the first appeal abated due to non-substitution of LRs of Murarilal.
2. Whether earlier High Court orders holding that the estate was sufficiently represented barred a later finding of abatement by res judicata.
3. Whether impleadment of Murarilal’s heirs as pro forma respondents effectively set aside abatement.
4. Whether delay, if any, ought to have been condoned.
 

Court’s Reasoning

• Vendor as necessary party: In suits for specific performance, the vendor remains a necessary party even if the property is transferred, as the decree requires the vendor to execute the sale deed; transferees only join to pass title (doctrine reaffirmed from Lala Durga Prasad and Dwarka Prasad.
• Sufficient representation: Where the deceased vendor’s estate is substantially represented by other legal heirs on record, non-substitution of one heir does not cause abatement. Here, three heirs of Kishorilal and the transferees lis pendens were already on record.
• Distinction from total non-representation: Dwarka Prasadwas distinguished as a case where the vendor’s estate was wholly unrepresented; that was not the position here.
• Res judicata: The High Court had earlier held (orders dated 04.03.2013 and 03.05.2013) that the appeal had not abated. Revisiting the issue later was barred by res judicata, which applies to successive stages of the same proceedings.
• Clerical error: Deletion of Kishorilal’s name in the order dated 09.05.2011 was a clerical/typographical mistake correctable under ss. 151–152 CPC.
 

Decision / Disposition

Both appeals allowed. The impugned High Court orders dismissing the appeals as abated were set aside, and the first appeals were restored for decision on merits.

 

Ratio

An appeal arising from a suit for specific performance does not abate on non-substitution of one legal heir of a deceased vendor where the vendor’s estate is otherwise substantially represented by remaining heirs on record, and an earlier judicial determination to that effect operates as res judicata.


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