Order XXII deals with the procedure to be followed when a party to a suit dies, marries, becomes insolvent, or when interest in the suit devolves upon another person during the pendency of litigation. The object is to ensure continuity of proceedings and prevent failure of justice due to change in parties.
Rule 1 – No Abatement by Party’s Death if Right to Sue Survives
The death of a plaintiff or defendant does not automatically cause the suit to abate, provided the right to sue survives.
Principle
If the cause of action is not personal to the deceased party and can be pursued by or against his legal representatives, the suit continues.
Example
Suit for recovery of money
Suit relating to property rights
Exception
If the cause of action is personal, the suit abates.
Example:
Defamation
Divorce
Personal services
Rule 2 – Procedure When One of Several Plaintiffs or Defendants Dies and Right to Sue Survives
When there are multiple plaintiffs or defendants, and one of them dies:
If the right to sue survives to the remaining parties, the suit continues with the surviving parties.
The court records the death in the proceedings.
Important Points
No substitution is required.
Proceedings continue normally.
Example:
Three plaintiffs file a property suit and one dies. If the right survives to the others, the suit continues.
Rule 3 – Death of One of Several Plaintiffs or Sole Plaintiff
Rule 3(1)
Where:
One of several plaintiffs dies and right to sue does not survive to the others, OR
Sole plaintiff dies, but the right to sue survives,
then:
The court must substitute the legal representative (LR) of the deceased plaintiff upon application.
Rule 3(2)
If no application is made within the limitation period, then:
The suit abates so far as the deceased plaintiff is concerned.
On application by the defendant, costs may be awarded against the estate of the deceased plaintiff.
Limitation
Application must generally be made within 90 days from the date of death (Limitation Act).
Rule 4 – Death of One of Several Defendants or Sole Defendant
Rule 4(1)
Where:
One of several defendants dies and the right to sue does not survive against the remaining defendants alone, OR
Sole defendant dies, but the right survives,
the court shall substitute the legal representative of the deceased defendant.
Rule 4(2)
A substituted legal representative may:
Raise all defences appropriate to his character as LR.
Example:
Defences relating to the estate of the deceased.
Rule 4(3)
If no substitution application is made within limitation, the suit abates against the deceased defendant.
Rule 4(4) – Exemption from Substitution (Inserted in 1976)
The court may exempt the plaintiff from substituting legal representatives if the deceased defendant:
Did not file written statement, or
Filed it but failed to appear and contest the suit.
Effect
Judgment may still be passed against the deceased defendant as if death had not occurred.
Rule 4(5) – Ignorance of Death
If:
Plaintiff did not know about the death of defendant, and
Because of this he could not substitute LR within limitation,
and later applies:
To set aside abatement, and
For condonation of delay under Section 5 of the Limitation Act
then the court must consider the plaintiff’s ignorance as sufficient cause if proved.
Rule 4A – Procedure Where There Is No Legal Representative
Inserted by 1976 Amendment.
If a deceased party has no legal representative:
The court may:
Proceed without representation, or
Appoint:
Administrator General
Court officer
Any suitable person
to represent the estate of the deceased.
Safeguards
Before appointment the court:
May notify interested persons.
Must ensure the representative:
Is willing
Has no conflict of interest.
Effect
Judgment binds the estate of the deceased.
Rule 5 – Determination of Question as to Legal Representative
If a dispute arises regarding who is the legal representative, the court decides the issue.
Appellate Court Provision
The appellate court may:
Direct a subordinate court to investigate, and
Submit:
Evidence
Findings
Reasons
The appellate court then determines the question.
Rule 6 – No Abatement by Death After Hearing
If a party dies after the conclusion of hearing but before judgment:
The suit does not abate.
Judgment may be pronounced as if the party were alive.
Purpose
To prevent reopening of concluded proceedings.
Rule 7 – Marriage of Female Party
Marriage of a female plaintiff or defendant does not cause abatement of the suit.
Rule 7(1)
The suit continues and:
Decree against a female defendant can be executed against her alone.
Rule 7(2)
Where the husband is legally liable for the wife’s debts:
The decree may be executed against the husband with court permission.
If decree is in favour of wife:
Husband may apply for execution if entitled to subject matter.
Rule 8 – Insolvency of Plaintiff
Rule 8(1)
If a plaintiff becomes insolvent, the suit does not automatically abate.
However:
The assignee or receiver must:
Continue the suit for benefit of creditors, or
Provide security for costs if required.
Rule 8(2)
If the assignee/receiver:
Refuses or neglects to continue the suit, or
Fails to give security,
then the defendant may apply for dismissal of the suit.
Consequence
Court may:
Dismiss the suit
Award costs to the defendant, recoverable from the insolvent estate.
Rule 9 – Effect of Abatement or Dismissal
Rule 9(1)
If a suit abates or is dismissed under this Order:
No fresh suit can be filed on the same cause of action.
Rule 9(2)
However, the following persons may apply to set aside abatement:
Plaintiff
Legal representative of deceased plaintiff
Assignee or receiver of insolvent plaintiff
If sufficient cause is shown, the court may restore the suit.
Rule 9(3)
Section 5 of the Limitation Act applies to such applications (condonation of delay).
Explanation
Even though a fresh suit is barred, the facts of the abated suit may still be used as a defence in later proceedings.
Rule 10 – Assignment, Creation or Devolution of Interest
If during pendency of suit interest in the subject matter transfers:
The suit may continue by or against the person upon whom the interest has devolved, with permission of the court.
Examples
Transfer of property
Assignment of rights
Succession of interest
Rule 10(2)
Attachment of a decree pending appeal is considered an interest enabling continuation of proceedings.
Rule 10A – Duty of Pleader to Inform Court of Death (1976 Amendment)
When a lawyer representing a party learns of the death of that party:
He must:
Inform the court immediately.
The court will then:
Notify the other party.
For this purpose, the lawyer-client relationship is deemed to continue even after death until such communication is made.
Rule 11 – Application of Order to Appeals
In appeals:
Plaintiff = Appellant
Defendant = Respondent
Suit = Appeal
Thus, the rules of death, substitution, and abatement apply equally to appellate proceedings.
Rule 12 – Application to Execution Proceedings
Rules 3, 4, and 8 do NOT apply to execution proceedings.
Meaning:
Death of parties in execution proceedings is governed by separate procedural provisions, not these rules.
Important Concepts in Order XXII
Abatement
Abatement means termination of the suit due to failure to substitute legal representatives within the prescribed time.
Legal Representative
Defined under Section 2(11) CPC:
A person who represents the estate of a deceased person.
Limitation Period
Generally 90 days from the date of death for substitution.
Key Examination Points
Death of party does not always cause abatement.
Substitution of legal representatives is necessary where the right to sue survives but does not vest solely in surviving parties.
Failure to substitute within limitation causes abatement.
Court may set aside abatement for sufficient cause.
Marriage of female party does not affect the suit.
Insolvency allows assignee/receiver to continue litigation.
Assignment or devolution of interest allows continuation of suit.
Rules apply equally to appeals but not to execution proceedings.
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