Code of Civil Procedure, 1908 (CPC)
Order XXII CPC: Death, Marriage and Insolvency of Parties
Litigation outlasts litigants. Order XXII of the Code of Civil Procedure, 1908 provides for what happens when a party dies, becomes insolvent, or parts with the interest he was suing about, while the suit is still pending. Its central question is asked in Rule 1, whether the right to sue survives; its central sanction is abatement, which operates automatically when a legal representative is not brought on record in time; and its central relief is the power to set aside abatement on sufficient cause. These notes cover the whole Order.
The scheme of Order XXII: survival of the right to sue, substitution, abatement and its undoing
1. The Threshold Question: Does the Right to Sue Survive?
§ Order XXII Rule 1, CPC 1908 The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. |
§ Applying the rule Everything in the Order turns on this question: • Where the right survives, the suit continues, and the machinery of substitution in Rules 2 to 4 applies. Claims affecting property and the estate survive: a suit for possession, for money, for specific performance, for a declaration of title. • Where the right does not survive, the suit comes to an end and no question of substitution or abatement arises. Purely personal actions die with the person on the maxim actio personalis moritur cum persona: defamation, assault, and claims for personal injury that do not affect the estate. • The test is whether the cause of action is personal or touches the estate. Where a personal claim has resulted in a decree before death, the decree itself is property and passes to the representative. |
2. Substitution of Legal Representatives: Rules 2 to 5
Situation | Rule | What happens |
|---|---|---|
One of several plaintiffs or defendants dies, and the right to sue survives to or against the survivors | Rule 2 | The court causes an entry to be made on the record, and the suit proceeds at the instance of or against the surviving parties. No substitution is needed |
A sole plaintiff, or the last surviving plaintiff, dies and the right to sue survives | Rule 3 | The court, on an application made within time, causes the legal representative to be made a party and proceeds with the suit; failing that, the suit abates as regards the deceased |
A sole defendant, or the last surviving defendant, dies and the right to sue survives | Rule 4 | The court, on application, causes the legal representative to be made a party and proceeds; failing that, the suit abates as against the deceased defendant |
Who the legal representative is | Rule 5 | Where a question arises as to whether a person is the legal representative, that question is determined by the court, which may try it as an issue and record its finding |
The defendant failed to file a written statement, or failed to appear | Rule 4(4) | The court may exempt the plaintiff from substituting the legal representative and may pronounce judgment notwithstanding the death, and such judgment has the same force as if pronounced before death |
Delay in applying | Rule 4(5) | The court may, on sufficient cause being shown, condone the delay and permit the representative to be brought on record |
The legal representative is defined by Section 2(11) as a person who in law represents the estate of a deceased person, and includes an intermeddler with the estate and, in representative litigation, the person on whom the estate devolves. The definition is inclusive and construed liberally, and a determination of representative status under Rule 5 is for the purposes of the suit; it does not finally adjudicate title to the estate.
3. Abatement, Total and Partial
§ How abatement works It is automatic. Where the legal representative is not brought on record within the period prescribed, the suit abates as against the deceased party by force of Rules 3(2) and 4(3). No order is required, and an order recording abatement is merely declaratory. The period is ninety days from the date of death, under Article 120 of the Limitation Act, 1963. The consequence is severe. By Rule 9(1), where a suit abates, no fresh suit shall be brought on the same cause of action. The plaintiff's only route back is an application to set aside the abatement. Rule 10A supports the timetable: where a pleader's client dies, the pleader must inform the court of the death, and the court then gives notice to the other party, so that the period does not run against a party in ignorance. |
§ Partial abatement and when it becomes total Where one of several defendants dies and his representative is not brought on record, the suit abates only as against that defendant, and continues against the others. That is partial abatement. But partial abatement becomes fatal to the whole suit where the decree that would result would be contradictory or unworkable: where the interests of the deceased and the surviving parties are joint and inseverable, where a decree against the survivors would conflict with the position of the deceased that has become final, or where the relief cannot be granted without the absent estate. The test to state is therefore: is the decree severable? If the suit can proceed and yield an effective decree against the remaining parties, partial abatement stands alone; if it cannot, the whole suit abates. |
4. Setting Aside Abatement: Rule 9
§ Order XXII Rule 9, CPC 1908 (in substance) (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 Limitation Act, 1963 shall apply to applications under sub-rule (2). |
i. Sixty days. An application to set aside abatement must be made within sixty days from the date of the abatement, under Article 121 of the Limitation Act, 1963.
ii. Section 5 applies. Unlike execution applications, delay here may be condoned on sufficient cause, since Rule 9(3) expressly applies Section 5.
iii. Sufficient cause is construed liberally. In Karuppaswamy v. C. Ramamurthy, (1993) 4 SCC 41 the Supreme Court held that the abatement provisions are procedural, intended to secure the proper conduct of litigation and not to extinguish rights; where a party has acted bona fide and the delay is explained, the court should lean in favour of setting aside the abatement and deciding the matter on the merits.
iv. Ignorance of the death is a recognised ground, particularly where the other side did not comply with Rule 10A.
5. Death After Hearing but Before Judgment: Rule 6
§ Order XXII Rule 6, CPC 1908 Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. |
The rule is a practical one: once the hearing is over, nothing further is required of the parties, and the court's task is its own. The words whether the cause of action survives or not make the rule absolute for that window, so even a personal action that would otherwise have died with the party is decided. The judgment so pronounced has the same force as one pronounced before the death, and the decree runs in favour of or against the estate.
6. Marriage, Insolvency and Devolution: Rules 7, 8 and 10
i. Rule 7: marriage of a female party. The marriage of a female plaintiff or defendant does not cause the suit to abate; the suit proceeds, and where the decree is against a female defendant it may, in a case where the husband is by law liable for her debts, be executed against him.
ii. Rule 8: insolvency of the plaintiff. The insolvency of a plaintiff does not cause the suit to abate where his assignee or receiver elects to continue it and to give security for the costs within the time the court orders. Where the assignee or receiver declines to continue, or fails to give security, the defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency, and the court may dismiss it and award costs against the plaintiff.
iii. Rule 10: assignment, creation or devolution of interest. In other cases of an 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 or upon whom such interest has come or devolved.
§ Rule 10 and the transferee pendente lite Rule 10 is permissive and requires leave: the transferee may be brought on record, but there is no abatement if he is not, because the interest remains represented on the record by his transferor. That follows from Section 52 of the Transfer of Property Act, 1882: a transferee pendente lite is bound by the decree whether or not he is a party, so the suit is not prejudiced by his absence. In execution, Order XXI Rule 102 completes the position: such a transferee gets no adjudication under Rules 98 and 100 when he resists delivery, being bound by the decree. The contrast with Rules 3 and 4 is therefore sharp: death requires substitution on pain of abatement; devolution by transfer merely permits it. |
7. Abatement Compared with Dismissal for Default
Basis | Abatement, Order XXII | Dismissal for default, Order IX |
|---|---|---|
Cause | The death of a party and the failure to bring the legal representative on record in time | The non-appearance of a party on the date fixed |
How it occurs | Automatically on the expiry of ninety days; an order recording it is declaratory | By an order of the court dismissing the suit under Rule 3 or Rule 8 |
Period to undo it | Sixty days to apply to set aside the abatement, under Article 121 | Thirty days to apply for restoration, under Article 122 |
Test applied | Sufficient cause for not continuing the suit; Section 5 of the Limitation Act applies by Rule 9(3) | Sufficient cause for non-appearance |
Fresh suit | Barred by Rule 9(1) on the same cause of action | Permitted after a dismissal under Order IX Rule 3, by Rule 4; barred after a dismissal under Rule 8, by Rule 9 |
What it decides | Nothing on the merits; the suit simply ends as against the deceased | Nothing on the merits either; no res judicata arises |
8. Landmark Points
- Order XXII Rule 1. The death of a party does not cause the suit to abate if the right to sue survives; a purely personal action dies with the person.
- Order XXII Rules 3(2) and 4(3) with Article 120, Limitation Act, 1963. Failure to bring the legal representative on record within ninety days causes automatic abatement as against the deceased.
- Order XXII Rule 9(1). Where a suit abates, no fresh suit may be brought on the same cause of action.
- Karuppaswamy v. C. Ramamurthy, (1993) 4 SCC 41. Abatement provisions are procedural; sufficient cause for setting aside abatement is construed liberally where bona fides are shown.
- Order XXII Rule 6. No abatement where death occurs between the conclusion of the hearing and the pronouncement of judgment, whether or not the cause of action survives.
- Order XXII Rule 10 with Section 52 of the Transfer of Property Act, 1882. Devolution by assignment permits continuation with leave, but causes no abatement, the transferee being bound by the decree.
9. Frequently Asked Questions
Does a suit abate on the death of a party?
Not automatically. Order XXII Rule 1 provides that death does not cause the suit to abate if the right to sue survives. Where it survives, the legal representative must be brought on record within ninety days, and only on that failure does the suit abate as against the deceased.
When does the right to sue not survive?
In purely personal actions that do not affect the estate, such as defamation, assault and claims for personal injury, on the maxim actio personalis moritur cum persona. The suit then simply comes to an end, and no question of substitution or abatement arises.
What is the period for bringing a legal representative on record?
Ninety days from the date of death, under Article 120 of the Limitation Act, 1963. On the expiry of that period the suit abates automatically as against the deceased, by force of Order XXII Rules 3(2) and 4(3).
Can an abatement be set aside?
Yes. Under Order XXII Rule 9(2) the court shall set aside the abatement if it is proved that the applicant was prevented by sufficient cause from continuing the suit. The application must be made within sixty days under Article 121, and Section 5 of the Limitation Act applies by Rule 9(3), so delay may be condoned.
What is partial abatement?
Abatement as against one of several parties, the suit continuing against the rest. It becomes fatal to the whole suit where the resulting decree would be contradictory or unworkable, as where the interests of the deceased and the surviving parties are joint and inseverable, so the test is whether the decree is severable.
What happens if a party dies after the hearing but before judgment?
There is no abatement. Order XXII Rule 6 provides that whether the cause of action survives or not, judgment may be pronounced notwithstanding the death, and it has the same force and effect as if pronounced before the death took place.
What is the effect of a transfer of interest during the suit?
Under Order XXII Rule 10 the suit may, by leave of the court, be continued by or against the transferee, but his non-joinder causes no abatement, because he is bound by the decree under Section 52 of the Transfer of Property Act, 1882 and the interest remains represented by his transferor.
What is the difference between abatement and dismissal for default?
Abatement follows the death of a party and the failure to substitute within ninety days, and occurs automatically; sixty days are allowed to set it aside. Dismissal for default follows non-appearance and is an order of the court; thirty days are allowed for restoration. Neither decides anything on the merits.
10. Related Topics in This CPC Series
- Order I Rule 10 Compared with Order XXII
- Order IX: Appearance and Non-Appearance of Parties
- Legal Representatives in Execution: Sections 50 and 52
- Order XXIII: Withdrawal and Compromise of Suits