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

- **Citation:** 2025 INSC 873
- **Court:** Supreme Court of India
- **Decided:** 2025-07-18
- **Bench:** Pamidighantam Sri Narasimha, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/suresh-chandra-deceased-thr-lrs-ors-v-parasram-ors-38391
- **Pages:** 42

## Headnote

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 nonsubstitution 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
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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 app

## Text

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[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 nonsubstitution 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
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[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.
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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)
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of deceased defendant; Abatement of appeal of the deceased coappellant 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.
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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 nonsubstitution 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
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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.
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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.
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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.
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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.
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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.
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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
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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
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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 selfdestructive 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.
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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 Ram17, which was noticed and
followed by the five-Judge Bench in Sardar Amarjit Singh (supra),
this Court enumerated certain tests to determine whether the whole
appeal would abate on account of non-substitution of the legal
representatives of one or some of the deceased parties. In this
regard it was observed:
"6. The question whether a court can deal with such
matters or not, will depend on the facts of each case
and therefore no exhaustive statement can be made
about the circumstances when this is possible or is not
possible. It may, however, be stated that ordinarily the
considerations which weigh with the court in deciding
17
Referred to in Footnote 7
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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.