Abatement Avoided Where Deceased Vendor’s Estate Is Substantially Represented; Earlier Non‑Abatement Orders Operate as Res Judicata in the Same Appeal

1. Introduction

KISHORILAL (D) THR. L.RS v. GOPAL (Supreme Court of India, 12-01-2026) concerns whether a first appeal arising from a decree for specific performance had abated due to non-substitution of the legal representatives of one deceased legal heir of the vendor.

The litigation began with Original Suit No. 5A of 1992, filed by Gopal (plaintiff) against Kishorilal (vendor/defendant) seeking declaration and injunction and, after amendment, specific performance of an agreement to purchase the suit property. During pendency of the suit, Kishorilal sold the property (20.04.1992) to Brajmohan and Manoj (transferees pendente lite), who were impleaded. The suit was decreed on 18.10.2000. A joint appeal F.A. No. 213 of 2000 was filed by Kishorilal and the transferees.

Kishorilal died (17.12.2005) and his four heirs were substituted. One heir, Murarilal, later died (22.07.2007). Instead of timely substitution of Murarilal’s heirs, an application led to deletion of his name, followed by competing procedural applications on abatement. Initially, the High Court (04.03.2013) held there was no abatement; later it allowed impleadment of Murarilal’s heirs as pro forma respondents (03.05.2013). However, by the impugned order (12.09.2017), the High Court dismissed the appeal as abated. A connected appeal F.A. No. 217 of 2000 (eviction suit by the transferees) was dismissed consequentially.

The Supreme Court addressed: (i) whether non-substitution of Murarilal’s heirs abated the vendor-side appeal, (ii) whether earlier High Court orders precluded later abatement findings (res judicata within the same proceeding), and (iii) the effect of impleadment and clerical errors in party array orders.

2. Summary of the Judgment

• The Supreme Court held that F.A. No. 213 of 2000 did not abate merely because the heirs of one deceased heir (Murarilal) were not substituted within limitation, as the estate of Kishorilal (vendor) was sufficiently represented by the remaining heirs on record and by the transferees.
• The Court held that after the High Court had earlier ruled (04.03.2013 and 03.05.2013) that there was no abatement, it was not open to revisit and declare abatement later; doing so was barred by res judicata as between stages of the same proceeding.
• The Court treated the order dated 09.05.2011 directing deletion of “appellant no.1” as a clerical/typographical mistake (it was meant to delete Murarilal) and held such mistakes are correctable under Sections 151 and 152 CPC.
• Both High Court orders dated 12.09.2017 (in F.A. No. 213 of 2000 and F.A. No. 217 of 2000) were set aside, and both first appeals were restored for decision on merits.

3. Analysis

3.1 Precedents Cited

A. Specific performance: vendor as a necessary party and form of decree

The respondents relied on Lala Durga Prasad and Others v. Lala Deep Chand and Others and R.C. Chandiok and Anr. v. Chuni Lal Sabharwal and Ors. to argue that even if title has passed to a subsequent purchaser, the proper decree in a specific performance suit directs (i) the vendor to specifically perform and (ii) the subsequent transferee to join in conveyance to pass the title residing in him. The Supreme Court reaffirmed this settled position, quoting the core holding from Lala Durga Prasad and Others v. Lala Deep Chand and Others that the subsequent transferee joins “only to pass on his title,” while the vendor remains central to performance of contractual covenants.

The respondents further relied on Dwarka Prasad Singh and Others v. Harikant Prasad Singh and Others to contend that in an appeal from a specific performance decree, absence of substitution of the vendor’s representatives would abate the appeal as a whole because the decree is inseverable and inconsistent decrees may result. The Supreme Court accepted the legal proposition that the vendor is necessary in specific performance, but distinguished Dwarka Prasad on facts: there the vendor’s interest was not represented at all, whereas here three out of four substituted heirs remained on record and thus sufficiently represented the vendor’s estate.

B. Abatement and “substantial representation” of the deceased party’s estate

The appellants relied on Bhurey Khan v. Yaseen Khan (Dead) by LRs & Ors., which followed Mahabir Prasad v. Jage Ram & Others, for the principle that proceedings do not abate when the deceased party’s estate is sufficiently represented by legal representatives already on record, even if some heirs are omitted. This line was noted as having been followed in Shivshankara & Anr. v. H.P. Vedavyasa Char. The Supreme Court applied this “substantial representation” doctrine to hold that non-substitution of the heirs of one deceased heir (Murarilal) did not abate the appeal because the vendor’s estate was already represented by (i) the other heirs and (ii) the transferees pendente lite.

The Court also noted appellant-cited authority Mohammad Arif v. Allah Rabbul Alamin & Ors. and K. Naina Mohamed (Dead) through LRs v. A.M. Vasudevan Chettiar (dead) through LRs & Ors. for the proposition that a transferee may, in appropriate circumstances, represent the deceased party’s estate as an intermeddler; however, the Court ultimately anchored its conclusion not on transferee-representation alone, but on the stronger fact that multiple legal heirs of the vendor were already on record.

C. Res judicata within the same proceeding (finality at successive stages)

The Court invoked Satyadhyan Ghosal & Ors. v. Deorajin Debi (Smt.) & Anr. (and the affirmation of the general doctrine traced to Maharaja Moheshur Singh v. Bengal Government) to reiterate that res judicata applies between two stages of the same litigation. It then relied on Y.B. Patil & Ors. v. Y.L. Patil and Bhanu Kumar Jain v. Archana Kumar & Anr. to reinforce that once an issue is decided at an intermediate stage, it binds later stages of the same proceeding.

Applying these principles, the Court held that once the High Court had already held (04.03.2013 and 03.05.2013) that there was no abatement, it was not open to reverse course later and dismiss the appeal as abated.

D. Liberal approach to procedural applications (abatement setting aside)

While the respondents stressed that abatement operates by law and cannot be undone by mere impleadment without condonation and a formal setting-aside order, the appellants relied on Mithailal Dalsangar Singh & Ors. v. Annabai Devram Kini & Ors. for a justice-oriented approach to such procedural questions. The Supreme Court did not ultimately need to rest its decision on liberal condonation principles because it found there was no abatement at all in the first place.

E. Lis pendens and nature of pendente lite transfers

On the status of pendente lite transferees, the appellants cited Madhukar Nivrutti Jagtap & Ors. v. Pramilabai Chandulal Parandekar (Dead) through LRs & Ors. to emphasize that lis pendens does not render transfers void, but makes them subservient to the decree. The Supreme Court accepted the general proposition but clarified the key point for specific performance: even though a lis pendens transfer is not necessarily void, the vendor remains necessary for execution of contractual covenants; hence representation of the vendor’s estate through his heirs remained doctrinally important.

3.2 Legal Reasoning

(i) Distinguishing “no substitution of vendor’s representatives” from “no substitution of one among several heirs”

The Court’s central move is to separate:

• Case A: Vendor dies; no legal representatives are brought on record (risking an ineffective/unenforceable specific performance decree and inconsistent outcomes) — the setting in Dwarka Prasad Singh and Others v. Harikant Prasad Singh and Others.
• Case B: Vendor dies; multiple legal representatives are substituted; later one substituted heir dies and his heirs are not substituted in time — the present case.

In Case B, the Court held that because three heirs remained on record and because the transferees were also parties, the vendor’s estate was substantially represented. Therefore, the appeal should not be treated as abated.

(ii) Res judicata prevents “procedural ambush” at a later stage

The Supreme Court treated the High Court’s earlier orders (04.03.2013 rejecting abatement and 03.05.2013 permitting impleadment while reiterating no abatement) as decisive on the procedural status of the appeal. Once that conclusion was reached at an intermediate stage, the Court held, the High Court could not later dismiss the appeal as abated: finality attaches to determinations at successive stages to prevent re-litigation of settled points.

(iii) Clerical errors in party-array orders should not determine substantive rights

The order dated 09.05.2011 mistakenly recorded deletion of “appellant no.1” (Kishorilal, already deceased) when the application concerned deletion of Murarilal. The Supreme Court characterized this as a clerical/typographical error and held it correctable under Sections 151 and 152 CPC. The Court’s approach reflects a procedural principle: courts should not permit a party to gain a substantive advantage from an obvious record mistake, especially when subsequent orders clarify the true procedural position.

3.3 Impact

• Procedural stability in appeals: High Courts must carefully examine whether the deceased party’s estate is already represented before declaring abatement, particularly when multiple heirs are on record.
• Specific performance litigation: The judgment preserves the doctrinal insistence that the vendor is a necessary party (as per Lala Durga Prasad and Others v. Lala Deep Chand and Others and Dwarka Prasad Singh and Others v. Harikant Prasad Singh and Others), while clarifying that the vendor’s “presence” requirement is satisfied through substantial representation by remaining legal heirs even if one heir’s branch is temporarily unrepresented.
• Res judicata within the same proceeding: Once a court has decided “no abatement” at an earlier stage, the same issue should not be reopened later in the same appeal, strengthening predictability and limiting tactical re-arguments late in the day.
• Reduced incentive for technical knockouts: The decision discourages attempts to win by exploiting omissions concerning one out of several heirs where the estate remains effectively before the court.
• Clerical correction ethos: Courts are encouraged to correct obvious mistakes under Sections 151/152 CPC rather than letting such errors derail adjudication on merits.

4. Complex Concepts Simplified

• Abatement: A case (or appeal) “dies” procedurally when a party dies and the required substitution of legal representatives is not made within limitation. If it abates, the court generally cannot decide it on merits unless abatement is set aside.
• Legal representative (Order XXII CPC): A person who in law represents the estate of a deceased party (commonly heirs), enabling the case to continue.
• Substantial representation: Even if not every heir is on record, the case may proceed if those on record adequately represent the deceased’s estate so that the adjudication is effective and not unfair.
• Res judicata (at different stages): Once a court decides an issue (e.g., “no abatement”) at an earlier stage of the same case, the same issue generally cannot be re-argued at a later stage between the same parties.
• Lis pendens (Section 52, Transfer of Property Act, 1882): A transfer made during pending litigation over the property is not automatically void, but the transferee takes the property subject to the eventual result of the litigation.
• Sections 151 and 152 CPC: Section 152 allows correction of clerical/arithmetical mistakes; Section 151 preserves the court’s inherent powers to do justice and prevent abuse of process.

5. Conclusion

This judgment crystallizes a practical procedural rule in specific performance appeals: non-substitution of the heirs of one deceased heir does not necessarily abate the appeal when the vendor’s estate is otherwise sufficiently represented by remaining heirs on record (and, on facts, even by transferees pendente lite). It further holds that where a court has already ruled at an earlier stage that there is no abatement, that determination cannot be reopened later in the same proceeding due to res judicata.

By restoring both appeals for adjudication on merits, the Supreme Court reaffirmed that civil procedure should facilitate substantive justice, not defeat it through technicality—particularly where representation is adequate, earlier orders have settled the procedural status, and clerical errors are plainly correctable.