Kishorilal (D) Thr. LRS & Ors. Vs Gopal & Ors. (Supreme Court of India)
No Abatement Where Estate Is Substantially Represented: Supreme Court Restores Appeals in Specific Performance Dispute
The Supreme Court, in Kishorilal (D) through LRs v. Gopal & Ors. (Civil Appeal Nos. 172 & 173 of 2026, judgment dated 12.01.2026), set aside the Madhya Pradesh High Court’s orders dismissing two connected first appeals as abated, and restored the appeals for decision on merits.
The dispute arose from a suit for specific performance of an agreement to sell immovable property. During pendency of the suit, the vendor (Kishorilal) sold the property to third parties (transferees lis pendens). After the suit was decreed, all parties jointly filed first appeals. During the appellate proceedings, Kishorilal died and his four legal heirs were substituted. Subsequently, one of the heirs (Murarilal) also died, and his LRs were not substituted within limitation. On this basis, the High Court ultimately held that the appeal had abated in entirety.
Reversing the High Court, the Supreme Court held that abatement is not automatic and before declaring abatement, the court must examine whether the estate of the deceased party is substantially represented by parties already on record. In the present case, three out of four legal heirs of the original vendor were already on record, in addition to the transferees lis pendens, who were entitled to prosecute the appeal as intermeddlers of the vendor’s estate. Therefore, the vendor’s estate was sufficiently and effectively represented, and the appeal did not abate merely because the heirs of one deceased legal heir were not substituted in time.
The Court reiterated settled law that while the vendor is a necessary party in a suit for specific performance, non-substitution of one of several legal heirs does not result in abatement if the remaining heirs adequately represent the estate (relying on Mahabir Prasad and Bhurey Khan). The decision in Dwarka Prasad was distinguished as a case where the vendor’s estate was not represented at all.
The Supreme Court also held that the High Court’s earlier orders (dated 04.03.2013 and 03.05.2013), which had categorically ruled that the appeal had not abated, operated as res judicata between stages of the same proceedings. The High Court could not later take a contrary view and dismiss the appeal as abated.
Further, the direction in the 2011 order to delete the name of the original appellant was held to be a clerical/typographical error, correctable under sections 151 and 152 CPC, and incapable of forming the basis for a finding of abatement.
Accordingly, the Supreme Court allowed both appeals, set aside the High Court’s orders dismissing the first appeals as abated, and restored the appeals to their original numbers for adjudication on merits, reaffirming that procedural lapses cannot defeat substantive justice where representation of the estate is complete.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
