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Sakharam Since Deceased Through L.Rs vs Kishanrao

Civil Appeal · 2022 INSC 1312Decided 3 Aug 2022
Civil Appeal Nos. 5067-5068 of 2022
Indira Banerjee · V. Ramasubramanian

Background

Two brothers (sons of one Tukaram) sued the two sons of one Gangaram for declaration and possession of property; their suit was dismissed but a first appeal succeeded in their favour. The losing defendants then filed a Second Appeal in the High Court. While that Second Appeal was pending, one of the two successful plaintiffs (a respondent in the appeal) died, and the appellants failed to bring his legal heirs on record. The High Court held the entire Second Appeal had "abated" (lapsed) because of this, and also refused to set aside that abatement, without examining the case on its merits.

Decision Breakdown

The Supreme Court held the High Court was wrong in law. Where a decree is jointly held by more than one successful plaintiff/respondent and one of them dies, the appeal does not automatically abate as long as the cause of action survives against the surviving respondent. It can simply proceed against the one who remains alive, under Order XXII Rule 2 of the CPC (made applicable to appeals via Order XXII Rule 11, reading "respondent" for "defendant"). Since one of the original plaintiffs was still alive and a party to the appeal, the Second Appeal should have continued rather than being treated as abated. The Court set aside both the High Court's abatement order and its dismissal of the application to set aside abatement, and sent the Second Appeal back to the High Court for a proper hearing on merits, requesting this be done within six months.

Lesson Learnt

The death of one party in a case with multiple parties on the same side does not automatically kill the case. If the underlying right survives with the remaining party, the litigation must continue and be decided on its merits, not thrown out on a technicality.

Official source (sci.gov.in)View Judgment (PDF)

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