Order XXII CPC: Death, Marriage and Insolvency of Parties

Order XXII of Code of Civil Procedure: Death, Marriage and Insolvency of Parties

Official Bare Act Text

Override / Mandate Court Discretion Procedural Action Non-Compliance Limitation Monetary

Rule 1. No abatement by party's death if right to sue survives

The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

Rule 2. Procedure where one of several plaintiffs or defendants dies and right to sue survives

Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

Rule 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff

(1)Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2)Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

Rule 4. Procedure in case of death of one of several defendants or of sole defendant

(1)Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(3)Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

(4)The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

Rule 9. Effect of abatement or dismissal

(1)Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2)The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3)The provisions of section 5 of the Indian Limitation Act, 1877 shall apply to applications under sub-rule (2).

Legal Commentary & Landmark Judgments: Order 22

Order XXII governs the legal consequences of the death, marriage, and insolvency of parties, providing that suits do not abate if the right to sue survives, and prescribing a ninety-day limitation to bring legal representatives on record.

No Abatement if Right to Sue Survives [R. 1]: The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
Ninety-Day Limitation to Implead LRs [R. 3 & 4]: Application to bring legal representatives of deceased plaintiff or defendant on record must be filed within 90 days under Article 120 Limitation Act; failure causes automatic abatement.
Setting Aside Abatement [R. 9]: Abatement can be set aside on demonstrating sufficient cause within 60 days under Article 121 Limitation Act (condonable under Section 5 Limitation Act).
Assignment Pendente Lite [R. 10]: In cases of assignment, creation, or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to whom such interest has devolved.

Key Landmark Precedents:

Perumon Bhagvathy Devaswom v. Bhargavi Amma, (2008) 8 SCC 321: The Supreme Court authoritatively analyzed Order 22 abatement, holding that courts must adopt a liberal and justice-oriented approach in setting aside abatement under Rule 9 where the party was unaware of the death of the opposite party.
Saila Bala Dassi v. Nirmala Sundari Dassi, AIR 1958 SC 394: The Supreme Court affirmed that a transferee pendente lite is entitled to apply for leave to continue proceedings under Order 22 Rule 10 to protect their purchased property rights.
Mithailal Dalsangar Singh v. Annabai Devram Kini, (2003) 10 SCC 691: Reaffirmed that an application to bring legal heirs on record under Rule 3/4 can be treated as an application to set aside abatement under Rule 9 to advance substantive justice.

Courtroom Practice & Strategic Litigation Guidance:

Immediately upon learning of the death of any party, file an application under Order 22 Rule 4 within 90 days; if the 90-day window has expired, file a composite application praying for: (a) condonation of delay, (b) setting aside abatement under Rule 9, and (c) impleadment of legal representatives.

Order XXII: Death, Marriage and Insolvency of Parties