Legal Review and Analysis of Kishorilal D Thr LRS & Ors vs Gopal & Ors 2026 INSC 48
Synopsis
This judgment revolves around the doctrine of abatement of appeals under the Code of Civil Procedure, 1908, in the context of a suit for specific performance of a contract. The central legal issue was whether an appeal abates in its entirety due to the non-substitution of the legal heirs of one of the deceased legal representatives of the original judgment-debtor (vendor), when the estate of the deceased is otherwise substantially represented by other heirs and lis pendens transferees on record. The Supreme Court clarified the interplay between Order XXII (Abolition and Substitution), the necessity of the vendor in specific performance suits, and the principles of substantial representation and res judicata.
I. Basic Information of the Judgment
Case Title: Kishorilal (D) Thr. LRS & Ors. vs. Gopal & Ors
Citation: 2026 INSC 48 (Reportable)
Coram: Hon’ble Mr. Justice Manoj Misra and Hon’ble Mr. Justice Ujjal Bhuyan
Bench: Division Bench of the Supreme Court of India
Date of Decision: January 12, 2026
Civil Appeal Nos.: 172 & 173 of 2026 (@ SLP(C) Nos. 36787 of 2017 & 397 of 2018)
II. Legal Framework & Relevant Precedents
A. Primary Legislation:
Code of Civil Procedure, 1908 (CPC):
Order XXII: Rules 2, 4, & 11 – Abatement and substitution of legal representatives.
Order I Rule 10: Impleadment of parties.
Order XLI Rule 4: Decree in appeal where one of several plaintiffs or defendants dies and abatement is set aside (its inapplicability discussed).
Sections 151 & 152: Inherent powers and correction of clerical errors.Transfer of Property Act, 1882:
Section 52 (Doctrine of Lis Pendens): Transfers pending litigation are not void but subservient to the decree passed in the suit.
B. Key Precedents Relied Upon:
For Vendor as Necessary Party & Form of Decree: Lala Durga Prasad v. Lala Deep Chand (1953), R.C. Chandiok v. Chuni Lal Sabharwal (1970), and Dwarka Prasad Singh v. Harikant Prasad Singh (1973). Established that in a specific performance suit, the vendor remains a necessary party for executing the sale deed, even if the property is transferred.
For Substantial Representation & Non-Abatement: Mahabir Prasad v. Jage Ram (1971) and Bhurey Khan v. Yaseen Khan (1995). Held that if the estate of the deceased is sufficiently represented by some legal heirs already on record, the proceeding does not abate merely because other heirs are not substituted.
For Principle of Res Judicata in Same Proceedings: Satyadhyan Ghosal v. Deorajin Debi (1960), Y.B. Patil v. Y.L. Patil (1976). Affirmed that an issue decided at an earlier stage of the same litigation cannot be re-agitated at a later stage.
For Liberal Approach in Setting Aside Abatement: Mithailal Dalsangar Singh v. Annabai Devram Kini (2003). Emphasized a justice-oriented approach unless there is gross negligence.
III. Relevant Facts of the Case
Original Suit (OS 5A/1992): Gopal (Respondent) sued Kishorilal for specific performance of an agreement to sell. Pending suit, Kishorilal sold the property to Brajmohan and Manoj (Appellants 2 & 3) under the doctrine of lis pendens.
Trial Court Decree: Decreed in favor of Gopal (18.10.2000).
First Appeal (FA 213/2000): Kishorilal (Appellant 1) and the transferees (Appellants 2 & 3) jointly appealed to the High Court.
Kishorilal died (17.12.2005); his four LRs (Suresh, Murarilal, Prakash, Sitabai) were substituted.
One LR, Murarilal (Appellant 1(2)) died (22.07.2007).
An application to delete Murarilal's name (on grounds his interest was represented by other LRs and the transferees) was erroneously allowed by order dated 09.05.2011, which mistakenly mentioned deletion of "Appellant No.1" (Kishorilal).Subsequent Proceedings:
Respondent filed for abatement due to non-substitution of Murarilal's heirs.
High Court, vide order dated 04.03.2013, initially held the appeal had not abated as Kishorilal's estate was represented by other LRs and the transferee-appellants.
Pursuant to liberty granted, the Appellants impleaded Murarilal's heirs as proforma respondents (order dated 03.05.2013).Impugned Order (12.09.2017): Later, the High Court reversed its stance, held the appeal had abated due to non-substitution of Murarilal's heirs, and dismissed it. Consequently, a connected appeal (FA 217/2000) filed by the transferees for eviction was also dismissed.
IV. Issues Framed by the Supreme Court
Whether First Appeal No. 213 of 2000 abated on the non-substitution of the Legal Representatives (LRs) of Murarilal?
Whether the High Court's earlier orders (04.03.2013 & 03.05.2013) holding the appeal had not abated would operate as res judicata, barring a subsequent contrary declaration?
Whether allowing the impleadment of Murarilal's heirs as proforma respondents (03.05.2013) had the effect of setting aside the abatement?
Whether, in the peculiar facts, the High Court ought to have condoned the delay and set aside the abatement?
V. Ratio Decidendi & Supreme Court's Analysis
A. Analysis of Core Legal Concepts:
Vendor as a Necessary Party in Specific Performance Suits:
The Court reaffirmed the settled law from Lala Durga Prasad and Dwarka Prasad. The vendor is indispensable because the decree must direct him to execute the sale deed to fulfill the contractual covenants, which a subsequent transferee (lis pendens purchaser) cannot undertake. The transferee only joins to pass on the title.Abatement and Substantial Representation:
The critical distinction drawn was between total non-representation and partial non-substitution.
Relying on Mahabir Prasad and Bhurey Khan, the Court held that if the estate of the deceased is sufficiently represented by some legal heirs already on record, the proceeding does not abate merely because other legal heirs are not brought on record.
Applied to Facts: Here, upon Kishorilal's death, all four LRs were substituted. When one (Murarilal) died, three LRs remained on record, along with Appellants 2 & 3 (the transferees in whom the title resided). Thus, Kishorilal's estate was substantially represented. Non-substitution of Murarilal's own heirs did not cause abatement of the appeal.Distinguishing Dwarka Prasad:
The Court clarified that Dwarka Prasad was inapplicable as it dealt with a scenario where the vendor's heirs were not substituted at all. The present case involved sufficient representation, making it factually distinct.
B. Application of Res Judicata to Stages of Same Proceeding:
The Court held that the principle of res judicata under Section 11 CPC applies to different stages of the same proceeding (Satyadhyan Ghosal).
The High Court's orders dated 04.03.2013 and 03.05.2013 had conclusively adjudicated that the appeal had not abated. Therefore, it was not open for the same court to later hold the appeal as abated. The subsequent dismissal order was hit by res judicata.
C. Nature of the Error in Order Dated 09.05.2011:
The Court held the direction to delete "Appellant No.1" (Kishorilal, who was already dead and substituted) was a clerical/typographical error. The intended party was Murarilal (Appellant 1(2)). Such an error was correctable under Sections 151/152 CPC.
D. Impleadment vs. Substitution:
Since the Court concluded there was no abatement in law, the impleadment of Murarilal's heirs under Order I Rule 10 CPC was valid and did not require a separate application for setting aside abatement or condonation of delay.
VI. Legal Framework Established/Clarified
This judgment reconciles and clarifies two seemingly conflicting lines of precedent:
The absolute necessity of the vendor (and his heirs) in specific performance suits (Dwarka Prasad line).
The principle of substantial representation to prevent abatement when the deceased's interest is not left unrepresented (Mahabir Prasad line).
New Emphasis: It underscores that the rule in Dwarka Prasad (abatement on vendor's non-representation) applies only when the vendor's interest is totally unrepresented. Where multiple legal heirs exist and the majority remain on record, the appeal does not abate upon the death of one heir. This prevents technical abatement from defeating substantive justice.
VII. Critical Analysis & Final Outcome
Critical Analysis:
The judgment adopts a pragmatic and justice-oriented approach, prioritizing substantive representation over hyper-technical compliance with procedural rules for substitution.
It strengthens the application of res judicata within the same proceeding, promoting judicial consistency and finality of interim rulings.
It correctly distinguishes the factual matrix from Dwarka Prasad, preventing the misapplication of a broad abatement rule in cases of partial heir representation.
Final Outcome:
Issue 1 & 2: Decided in favor of the Appellants. The appeal did not abate. The High Court's later contrary order was barred by res judicata.
Issue 3 & 4: Since there was no abatement, questions of setting it aside or condoning delay were rendered moot. Impleadment was valid.
Disposition: The Supreme Court allowed both appeals. The impugned orders of the High Court (12.09.2017) were set aside. First Appeal Nos. 213 of 2000 and 217 of 2000 were restored to the High Court for hearing on merits.
VIII. (MCQs)
1. In a suit for specific performance where the vendor has transferred the property to a third party during lis pendens, what is the correct form of decree as established in Lala Durga Prasad?
a) Only the subsequent transferee must execute the sale deed in favor of the plaintiff.
b) Only the vendor must execute the sale deed, as the transferee's title is void.
c) The vendor must execute the sale deed, and the subsequent transferee must join to pass on his title.
d) The court must cancel the sale to the transferee before directing execution.
2. According to the principle laid down in Mahabir Prasad and affirmed in the present judgment, when does a proceeding NOT abate upon the death of one legal heir?
a) When an application for condonation of delay is filed.
b) When the deceased was not a necessary party.
c) When the estate of the deceased is sufficiently represented by other legal heirs already on record.
d) When the cause of action survives against the remaining parties.
3. The Supreme Court held that the High Court's order dated 12.09.2017 (declaring abatement) was hit by which legal principle due to its earlier orders dated 04.03.2013 and 03.05.2013?
a) Stare Decisis
b) Actus Curiae Neminem Gravabit
c) Res Judicata
d) Noscitur a Sociis
4. The doctrine that renders a transfer during pending litigation subservient to the decree, as discussed in this judgment, is encapsulated in which provision?
a) Section 53 of the Transfer of Property Act, 1882
b) Order XXXIX Rule 1 & 2 of the CPC, 1908
c) Section 52 of the Transfer of Property Act, 1882
d) Section 54 of the Transfer of Property Act, 1882