LexSURESH CHANDRA (DECEASED) THR. LRS. & ORS. versus PARASRAM & ORS.
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[2025] 7 S.C.R. 1233 : 2025 INSC 873 Suresh Chandra (Deceased) Thr. Lrs. & Ors. v. Parasram & Ors. (Civil Appeal No(s). 9791-9793 of 2025) 18 July 2025 [Pamidighantam Sri Narasimha and Manoj Misra,* JJ.] Issue for Consideration Whether the order rejecting application(s) seeking condonation of delay for setting aside abatement and substitution of legal representatives of deceased appellant suffers from any legal infirmity; if the answer to (a) is in the negative, whether the second appeal abated wholly or partially, or not at all, on account of non-substitution of LRs of deceased defendant-appellant no.2. Headnotes† Code of Civil Procedure, 1908 – Or.XXII; Or.XLI r.4 – Plaintiff filed suit against the defendants (‘SC’ and ‘RB’), inter alia, for declaration of title and possession of suit property claiming that the defendants were his tenants – Defendants denied tenancy and claimed title and possession over the suit property through their father – Suit dismissed by trial court – Appeal filed by plaintiff, allowed by appellate court – LRs of ‘SC’; ‘RB’ filed second appeal however, during the pendency thereof, ‘RB’ died and his LRs were not brought on record within time – High Court declared the appeal to have abated due to non- substitution of the LRs of ‘RB’ within time – Applications filed for condonation of delay in applying to set aside abatement and for substitution of the LRs of the deceased defendant were also rejected – Challenge to: Held: First appellate court accepted plaintiff’s case and held the plaintiff to be owner of the suit property and defendants to be its tenants – Thus, if, on non-substitution of the legal representatives of one of the defendant-appellants, the second appeal abated qua him, the decree as against him, holding him to be tenant and plaintiff the owner, attained finality – Therefore, if the second appeal is allowed to proceed, on it being allowed, possibility of * Author 1234 [2025] 7 S.C.R. Supreme Court Reports conflicting and contradictory decrees, in respect of same subject matter, coming into existence cannot be ruled out because one, which attained finality, held the plaintiff to be owner of the suit property and the deceased defendant its tenant whereas the other could hold the surviving defendant to be its owner – Thus, on abatement of second appeal qua the second appellant, the entire second appeal abated as continuance of the second appeal would have given rise to a possibility of inconsistent decrees i.e., one in favour of the plaintiff against the deceased defendant-appellant and the other in favour of the surviving defendant appellant, even though both defendants claimed joint interest in the suit property flowing from their father – As the second appeal was jointly filed by the two defendants, the benefit of the provisions of Or.XLI, r.4 was not available to the surviving defendant appellant to continue with the second appeal and seek for reversal or modification of the decree operating against the deceased-appellant as well – Further, there was no sufficient cause for condonation of delay in filing application for substitution and setting aside abatement – Finding of the High Court not interfered with – No merit in the present appeals. [Paras 37, 38] Code of Civil Procedure, 1908 – Or.XXII – Abatement of an appeal on non-substitution of a deceased party, partial or whole: Held: Whether the entire appeal abates or it abates partially qua the deceased party alone, will depend on facts of each case and, therefore, no exhaustive statement about the circumstances in which the entire appeal would abate can be made – In a case of “joint and indivisible decree” or “joint and inseverable or inseparable decree”, the abatement of appeal in relation to one or more of the appellant(s) or respondent(s) on account of failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal because proceeding qua the surviving party or parties may give rise to inconsistent or contradictory decrees – Law summarized. [Para 17] Code of Civil Procedure, 1908 – Or.XLI, r.4; Or.XXII – Interplay between, qua abatement of an appeal – Law summarized – Or.XLI, r.4 cannot prevent abatement of an appeal of the deceased co-appellant on non-substitution of his LRs – There is no inconsistency between the provisions of Or.XXII and those of r. 4 of Or.XLI. [Para 31] [2025] 7 S.C.R. 1235 Suresh Chandra (Dec
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