TaxTMI 
TaxTMI 
2026 (1) TMI 1686
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....the suit property from Kishorilal, vide sale-deed dated 20.04.1992. 3. The aforesaid suit was decreed on 18.10.2000. Aggrieved therewith, Kishorilal and the transferees lis pendens, namely, Brajmohan and Manoj, jointly filed appeal (i.e., F. A. No. 213 of 2000) before the High Court of Madhya Pradesh, Bench at Gwalior [High Court]. During pendency of the appeal, Kishorilal died on 17.12.2005. Therefore, vide order dated 10.07.2006, his LRs, namely, (i) Suresh, (ii) Murarilal, (iii) Prakash and (iv) Sitabai were substituted as appellants No. 1(1), 1(2), 1(3) and 1(4), respectively. 4. On 22.07.2007 Murarilal i.e., appellant No. 1(2) died. On his death, the remaining appellants filed an application (i.e., IA No.17118 of 2010) on 19.10.2010 for deletion of Murarilal from the array of parties on the ground that interest of Kishorilal in the suit property is already represented by Brajmohan and Manoj (i.e., appellants No. 2 and 3 who had purchased the suit property) and other LRs of Kishorilal. The said application was allowed by order dated 09.05.2011, which reads as under: "Heard on I.A. No. 17118/2010, which is an application under Order XXII Rule 2, 4(4) and under Sec....
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....rder 22 Rules 4 and 11 read with Order 1 Rule 10 of the Code of Civil Procedure, 1908 [CPC], to implead heirs of Murarilal as respondents. On this application, an objection was filed by the plaintiff-respondent. However, the application was allowed vide order dated 03.05.2013, which is reproduced below: "Heard on I.A. No. 1438/2013 which is an application under Order XXII Rule 4 and 11 C.P.C. and under Order I Rule 10 C.P.C. for deleting the name of original appellant no. 1 as he has sold the property to appellant no.2 and 3 and to bring the Legal Representatives of appellant no. 1(2) on record. Other Legal Representatives of appellant no.1 are on record, therefore, there is no abatement of appeal. Let the necessary amendment be carried out within 7 days from today. List the case for final hearing in Second Week of July, 2013." [Note: There appears some typographical error in this order as I.A. No.1438/2013 did not seek deletion of appellant no.1 rather it sought impleading the heirs of Murarilal as proforma respondents] 6. Thereafter, on 15.07.2017 an application was filed by the appellants for setting aside abatement of the appeal, if any, a....
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....ALF OF APPELLANTS 15. Learned counsel for the appellants submitted: (i) Kishorilal (i.e. judgment-debtor in O.S. No. 5A of 1992) had already transferred his interest in the suit scheduled property (i.e., subject matter of the agreement), therefore, his interest was fully represented by the purchasers i.e., transferees lis pendens, namely, Brajmohan and Manoj, who were on record as appellants No. 2 and 3 in F.A. No. 213 of 2000; hence, on death of Kishorilal, the appeal would not abate as the right to pursue the appeal survived on the surviving appellant(s). (ii) A transfer hit by Section 52 of the Transfer of Property Act, 1882 (i.e. the doctrine of lis pendens) is not void though subservient to the rights of the parties under the decree or order which may be made in the suit or the proceeding. In such circumstances, Brajmohan and Manoj were entitled to represent the estate of Kishorilal not only as transferee but also as an inter- meddler of the estate of Kishorilal. (iii) Besides that, on death of Kishorilal, his four legal heirs, namely, Suresh, Murarilal, Prakash and Sitabai, were brought on record. Even if one of them died, the estate of Kishorilal was sub....
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....chaser is on record, the vendor would have to be on the record for a valid decree. In such circumstances, the benefit of Order 41 Rule 4 of CPC is not available as was held by this Court in Dwarka Prasad Singh and Others v. Harikant Prasad Singh and Others [(1973) 1 SCC 179]. (iii) Abatement is by operation of law. Therefore, even in absence of a formal order, the appeal or proceeding would abate for non- substitution within the period of limitation. (iv) Once abatement takes place, it can be set aside by substitution after condoning the delay and not by way of impleadment. Therefore, if time for substitution has lapsed and the appeal has abated, in absence of an order condoning the delay in seeking substitution and setting aside abatement, by mere impleadment of LRs of a deceased party, abatement cannot be deemed set aside. Hence, the order dated 03.05.2013 is of no consequence more so because Murarilal died on 22.07.2007 and by the time impleadment was allowed, the appeal had already abated. (v) The application to set aside abatement was filed on 24.07.2017 i.e. about 10 years after Murarilal's death. Therefore, it was justifiably rejected by the Hi....
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....g Murarilal were substituted vide order dated 10.07.2006. Thereafter, Murarilal died in the year 2007. An application was submitted for deleting him from the array of parties on the ground that interest of Kishorilal was sufficiently represented by his other LRs including appellants No. 2 and 3 (i.e., lis pendens transferees). On this application, an order was passed on 09.05.2011 deleting appellant no.1 (Kishorilal) from the array of parties, when the prayer was to delete Murarilal. It is necessary to note that on the date when order dated 09.05.2011 was passed Kishorilal was already dead and stood substituted by his four legal heirs including Murarilal. Thus, it is clear that the direction to delete Kishorilal from the array of parties was nothing but a typographical mistake which ought to be read/considered as a direction to delete Murarilal as is clear from subsequent orders passed in the course of the appeal. 21. In the aforesaid context, when plaintiff- respondent filed an application for abatement on non-substitution of LRs of Murarilal, the High Court passed an order on 04.03.2013 holding that since LRs of Kishorilal, namely, appellants No. 2 and 3, who had purchased the....
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....s) is on there being no application of mind on the part of the High Court in allowing impleadment of the heirs of Murarilal as proforma respondents because, by that date, the appeal had already abated. According to him, in absence of condonation of delay in filing an application to set aside abatement, or to substitute the legal heirs, the appeal had abated by operation of law and, therefore, such impleadment cannot revive the appeal. 28. Besides that, the learned counsel for the respondents submitted that the order dated 09.05.2011 deleting the name of Kishorilal/ Murarilal was at the risk and cost of the appellants which means that the order would not bar subsequent adjudication of the issue on the principle of res judicata. 29. On the other hand, the learned counsel for the appellants laid emphasis on the observations in the subsequent order dated 04.03.2013 wherein the Court had observed that since legal representatives of Kishorilal, who have right, title and interest over the disputed property, are already on record as appellants No.2 and 3, the appeal would not abate. According to the appellants, this observation in the order dated 04.03.2013 coupled with subsequent or....
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....in favour of plaintiff; and (c) conveyance in favour of plaintiff by the subsequent purchaser alone. After rejecting the above three options, this Court held: "42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff." 33. In R.C. Chandiok [See: Footnote 5], decision of this Court in Lala Durga Prasad was followed. 34. In Dwarka Prasad [See: Footnote 6], the question that arose before this Court was whether in absence of substitution of legal heirs of the vendor, the appeal by a subsequent purchaser against the decree of specific performance would abate. Two arguments were raised on behalf of the appellant therein, namely, (a) that vendor was not a necessary party as the subsequent purchaser represents his interest; and (b) the case would be covered by the provisions of Order 41 Rule 4 of CPC. Both arguments were rejected by this ....
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....is that if a decree for such a relief is granted the person who has agreed to purchase the property should be put in the same position which would have obtained in case the contracting parties i.e., vendor and the purchaser had, pursuant to the agreement, executed a deed of sale and completed it in every way. Therefore, it is essential that the vendor must join in the execution of the sale deed. If that be so, it is not possible to comprehend how he is not a necessary party ... " 36. The law is thus settled that the vendor is a necessary party in a suit for specific performance of an agreement for sale, notwithstanding that vendor has transferred his interest in the subject matter of the agreement to a third party. Reason being that the transferee/ third party cannot be subjected to special covenants, if any, between the vendor and the plaintiff-purchaser. Besides that, the object of the decree of specific performance is to put the person who has agreed to purchase the property in the same position which he would have obtained in case the contracting parties i.e., vendor and the purchaser had, pursuant to the agreement, executed a deed of sale and completed it in every way. D....
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....record, without specifically praying for setting aside abatement, may in substance be construed as a prayer to set aside the abatement. Further, the prayer for setting aside abatement is to be considered liberally and the courts must adopt a justice-oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court. (f) Madhukar Nivrutti Jagtap & Ors. v. Pramilabai Chandulal Parandekar (Dead) through LRs & Ors. [(2020) 15 SCC 731]. In this case it was held that the effect of doctrine of lis pendens is not to annul all transfers effected by the parties to a suit but only to render them subservient to the rights of the parties under the decree or order which may be made in that suit. [Note: This was cited so as to canvass that the sale deed executed by Kishorilal in favour of the second and third appellants was not void and, therefore, they could validly represent the interest of Kishorilal and, therefore, the appeal would not abate]. ....
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....erty to appellants No. 2 and 3 during the course of suit proceeding. Therefore, on the date of filing the appeal, title in the subject matter of the sale agreement resided in those appellants albeit subservient to the decree. However, presence of Kishorilal was necessary to effectively execute the decree of specific performance which is in the nature of a direction to fulfil contractual obligations. In such circumstances, on death of Kishorilal, his LRs were required to be brought on record. In the present case, on the death of Kishorilal (i.e., appellant No.1) all his LRs were substituted as appellants No. 1(1), 1(2), 1(3) and 1(4), though, later, one of them, namely, Murarilal i.e., appellant 1(2), died. Since three legal heirs of Kishorilal were already on record, besides the appellants No.2 and 3 in whom title in the property resided, the estate of Kishorilal was sufficiently represented and, therefore, in our view, the appeal did not abate on non- substitution of LRs of Murarilal as was rightly held earlier by the High Court vide order dated 03.05.2013. The aforesaid view is in conformity with the law laid down by this Court in Bhurey Khan and Mahabir Prasad. 40. The decisi....
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....r inasmuch as the prayer made was to delete appellant No.1(2) i.e., Murarilal from the array of parties as other LRs of Kishorilal sufficiently represented his interest. Such a mistake could be corrected at any stage in exercise of powers under Sections 151 and 152 of CPC. Therefore, the plaintiff-respondent cannot take advantage of the aforesaid mistake. Issue (iii) 45. As we have already concluded that appeal had not abated on non-substitution of legal heirs of deceased Murarilal i.e., appellant No.1(2), there was no question of setting aside abatement. Rather, the High Court was well within its jurisdiction in allowing impleadment of his heirs as proforma respondents in exercise of powers under Order 1 Rule 10 of CPC. Issue (iii) is decided accordingly. Issue (iv) 46. In view of our conclusion that the appeal had not abated, the High Court had the discretion to allow impleadment of Murarilal's heirs and for such impleadment, it was not required to condone the delay or to set aside abatement. Issue (iv) is decided accordingly. Conclusion 47. In view of our findings on the issues framed above, the view of the High Court that the appeal had abated is erroneous....