VidhiSangh

Supreme Court of India · 03/08/2022

SAKHARAM SINCE DECEASED THROUGH LRS & ANR. versus KISHANRAO

[2022] 6 S.C.R. 901 · 2022 INSC 1312

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Summary

Two brothers obtained in first appeal a decree for declaration and possession of immovable property. The defendants filed a second appeal in the Bombay High Court, and while it was pending one of the two decree-holding plaintiffs died and his legal representatives were not brought on record. The High Court held the second appeal had abated and refused to set aside the abatement. The Court held that where two plaintiffs jointly obtain a decree, the death of one does not cause the appeal to abate if the right to sue survives against the surviving decree-holder. Under Order XXII Rule 2 read with Rule 11 CPC, applying respondent for defendant and appeal for suit, the appeal proceeds against the surviving respondent. The dismissal for abatement, without reaching the merits, was contrary to law. The second appeal was remitted for decision on merits within six months.

Issues

  1. Whether a second appeal against a decree jointly obtained by two plaintiffs abates on the death of one of them when his legal representatives are not brought on record.

Provisions considered

Held

Result

Appeals allowed. The High Court's judgment holding the second appeal abated and its order refusing to set aside abatement are set aside, and the second appeal is remitted for decision on merits, preferably within six months.

Judgment PDF: Supreme Court of India, [2022] 6 S.C.R. 901.