Joint appeal abates where non-substitution of deceased co-appellant risks contradictory decrees; SLP dismissed

A Bench comprising Justice Pamidighantam Sri Narasimha and Justice Manoj Misra heard an appeal against two orders of the High Court of Madhya Pradesh which declared a second appeal to have abated for non-substitution of the legal representatives (LRs) of a deceased co-appellant and refused condonation of delay in seeking set-aside of the abatement and substitution.

The Court dismissed the civil appeals and upheld the High Court’s findings that there was no sufficient cause to condone the inordinate delay in seeking substitution; it held that continuation of the jointly-filed second appeal after abatement qua one defendant would have risked “inconsistent or contradictory decrees” and therefore the entire appeal abated. The Court reiterated that Order XLI Rule 4 CPC did not assist the surviving appellant because the appeal had been filed jointly by both defendants and not by one appellant “representing” the other. The Court, in its reasoning, observed: “(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. … (4) The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal … only with reference to the fact as to whether the judgment/decree passed in the proceedings vis-à-vis the remaining parties would suffer the vice of contradictory or inconsistent decrees. … A decree can be said to be contradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive …”

Background The dispute arose from Civil Suit No.13 of 1983 (renumbered 16A of 1997) in which the plaintiff sought declaration, recovery of possession and mesne profits in respect of a house. The plaintiff claimed exclusive title through his ancestor Tej Singh and alleged the defendants were tenants. Two defendants, Suresh Chandra and Ram Babu, jointly denied tenancy and asserted title by right of partition through their ancestor Gokul Prasad in 1947. The trial court dismissed the suit; the first appellate court in turn decreed the plaintiff’s suit. The defendants (through successors) filed a second appeal before the High Court.

During the pendency of the second appeal one co-appellant, Ram Babu, died on 19.08.2015. Although the death was placed on record in 2016, his legal representatives were not substituted within the statutory period and the High Court declared the appeal abated on 21.02.2022. Subsequent applications by both the surviving appellants and the would‑be LRs of the deceased for condonation of delay and setting aside of the abatement were rejected on 04.08.2022. The applicants had sought to show “sufficient cause” for the delay, but the Court found the delay inordinately long and that, given the close family relationships and early knowledge of death, “no sufficient cause” had been shown.

On appeal to the Supreme Court counsel for the appellants argued that the surviving appellants had an independent right to pursue the appeal and relied on Order XLI Rule 4 CPC and precedent. The respondents contended the decree appealed from was joint and indivisible, so abatement against one co-appellant rendered the whole appeal abortive and Order XLI Rule 4 could not be invoked where the appeal had been jointly filed. The Supreme Court analysed the interplay between Order XXII (abatement and substitution) and Order XLI Rule 4 (appeals where decree proceeded on a common ground), reviewed the ratio in Sardar Amarjit Singh Kalra (five‑Judge Bench) and related authorities, and concluded that where continuation would produce mutually inconsistent decrees the entire appeal must be treated as abated. The Court therefore dismissed the appeals and directed that parties bear their own costs. No interim directions were granted.

Case Details: Case No.: 2025 INSC 873 (Civil Appeal Nos. of 2025 arising out of SLP (C) Nos.15900-15902/2022) Case Title: SURESH CHANDRA (DECEASED) THR. LRS. & ORS. v. PARASRAM & ORS. Appearances: For the Petitioner(s): Shri Jayant Mehta, Senior Counsel For the Respondent(s): Shri N.K. Mody, Senior Counsel