Summary
The Supreme Court held that a first appeal against a decree of specific performance did not abate when one of the four substituted legal heirs of the deceased vendor-appellant died and his heirs were not substituted in time, because the vendor's estate remained sufficiently represented by the other heirs and the lis pendens purchasers on record; the High Court's later contrary finding was also barred by res judicata. Both first appeals were restored.
Issues
- Whether the first appeal abated on non-substitution of the legal representatives of one of the four heirs of the deceased vendor (judgment-debtor) in a specific performance suit.
- Whether the High Court's earlier order holding that the appeal had not abated barred, by res judicata, a later declaration of abatement.
- Whether impleading the deceased heir's legal representatives as proforma respondents amounted to setting aside abatement, and whether condonation of delay was needed.
Provisions considered
- Order XXII Rules 2, 4 and 11, Code of Civil Procedure, 1908The Court held that before declaring abatement on non-substitution of a deceased party's heirs, it must be seen whether the deceased's interest is sufficiently represented by parties on record; since three heirs of the vendor and the transferees remained on record, the appeal did not abate. (¶¶ 38, 39, 40, 43)
- Order I Rule 10, Code of Civil Procedure, 1908As the appeal had not abated, the High Court was within its jurisdiction to implead the deceased heir's legal representatives as proforma respondents without condoning delay or setting aside abatement. (¶¶ 45, 46)
- Sections 151 and 152, Code of Civil Procedure, 1908The direction in the order of 09.05.2011 to delete the original appellant (already dead) instead of his heir was a clerical mistake correctable at any stage, of which the respondent could not take advantage. (¶¶ 20, 44)
- Section 52, Transfer of Property Act, 1882A transfer pendente lite is not necessarily void but is subservient to the decree; the transferee lis pendens is not a necessary party to a specific performance suit, though he may pursue an appeal as legal representative or inter-meddler of the vendor's estate. (¶¶ 37, 38, 39)
Held
- In a suit for specific performance of an agreement to sell immovable property, the vendor is a necessary party even after transferring his interest, because the decree directs specific performance by the vendor with the subsequent transferee joining only to pass title, and special covenants bind only the vendor; an appeal abates if the vendor's heirs are not substituted on his death. (¶¶ 32, 34, 35, 36, 38)
- Before declaring a suit or appeal abated for non-substitution, the court must examine whether the deceased party's interest is sufficiently represented by parties on record such that the eventual decree remains executable; if so, there is no abatement. (¶ 38)
- There is a distinction between non-substitution of all legal representatives of a deceased party and non-substitution of one of several heirs; where three of the vendor's four heirs and the transferees in whom title resided were on record, the vendor's estate was sufficiently represented and the appeal did not abate. Dwarka Prasad Singh was distinguished as a case where the vendor was not represented at all. (¶¶ 39, 40, 43)
- Res judicata applies between different stages of the same proceeding; once the High Court had decided during the appeal that it had not abated, it could not revisit the question later, and the fact that the earlier deletion order was made at the appellants' risk did not keep the issue open. (¶¶ 30, 41, 42)
- Since the appeal had not abated, there was no question of setting aside abatement or condoning delay; impleading the deceased heir's legal representatives as proforma respondents was within the High Court's discretion. (¶¶ 45, 46)
- As the connected first appeal arising from the transferees' eviction suit had been dismissed only as a consequence of the abatement finding, it too had to be restored. (¶¶ 11, 47)
Result
Appeals allowed; High Court's orders dated 12.09.2017 in F.A. No. 213 of 2000 and F.A. No. 217 of 2000 set aside; both first appeals restored to their original numbers for decision in accordance with law.