Order 22 deals with the creation, assignment or devolution of interest during
the pendency of suits. It also applies to appeals, but not to execution
proceedings. The provisions of Order 22 are exhaustive. They should, however, be
liberally construed to serve the end of justice.
Such creation, assignment or devolution may arise in the following
- Death of a party (rule 1 to 6, 10A)
- Marriage of a party (rule 7)
- Insolvency of a party (rule 8) or;
- Assignment of interest (rule 10)
(I) Death Of Party: Rules 1-6
Order 22, Rules 1-6,9 and 10-A relate to death of a party, i.e. plaintiff or
defendant and consequences of such death. Where a party to a suit dies, the
first question which requires consideration is: Whether the right to sue
survives? If the right does not survives, the matter is over. But if it
survives, the suit will not abate.
Let us consider the effect of death of parties to suit.
Death of plaintiffWhere the sole plaintiff dies, the suit will not abate, if the right to sue
survives. It can be continued by the heirs and legal representatives of the
deceased plaintiff. If the right to sue does not survive, the suit will come to
Where one of the several plaintiff dies and the right to sue survives to the
surviving plaintiff or plaintiff’s, the court will make an entry to that effect
and proceed with the suit by surviving plaintiff or plaintiffs.
Where plaintiff dies after hearing and before pronouncement of judgment, the
suit shall not abate. The same principle will apply in case of death of the
plaintiff after passing of preliminary decree and before final decree.
Once the final decree is passed, the rights of the parties are adjudicated and
the question is only of execution of the decree. The provisions relating to
abatement do not apply to execution proceedings; they, however, apply to
Death of defendantWhere the sole defendant dies, the suit shall not abate if the right to sue
survives. It can be continued against the heirs and legal representatives of the
Where one of the several defendants dies and the right to sue survives against
the surviving defendant or defendants, or where the sole surviving defendant
dies and the right to sue survives, the court, on an application by the legal
representative of the deceased defendant, will make him a party and proceed with
When no such application is made within the period of limitation (ninety days),
the suit shall abate as against the deceased defendant.
Where the defendant dies after hearing and before the pronouncement of judgment,
the suit shall not abate. The suit also does not abate on account of an
Right to sueAs already noted, when a party to a suit dies, the first question to be decided
a weather the right to sue survives or not. If doesn’t, there is an end to the
suit. If it does, the suit will not abate. It can be continued by or against
the heirs and legal representative of the deceased party.
The expression right to sue has not been defined in the Code, but it may be
interpreted to mean right to seek to relief. In other words, right to sue
survives if the cause of action survives or continues.
The general rule is that all rights of action all demands whatsoever, existing
in favour of or against a person at the time of his death, survive to or against
his representatives. But in case of a personal actions, i.e. actions where the
relief sought personal to the deceased or the rights intimately connected with
the individuality of the deceased, the right to sue will not survive to or
against his representatives. In these case, the maxim action personalis moritur
cum persona (a personal action dies with the person) applies.
This principle is found in Section 37 of the Indian Contract Act, 1872 and
Section 306 of the Indian Succession Act, 1925.
Thus, it has been held that the right to sue survives in a suit by a landlord
against his tenant for the possession of the rented house after the death of the
landlord; or in a suit for accounts against a trustee where the trustee died; or
in a suit for partition of ancestral property by a coparcener after his death;
or in a suit for pre-emption. On the other hand, it has been held that the right
to sue does not survive in the following cases; in a suit for a damages for
assault, personal injuries or for malicious prosecution; or for defamation; or
for breach of contract of betrothal; or for dissolution of marriage; or in a
suit for specific performance of a contract involving exercise of special skill
like a promise to paint a picture, or to sing a song.
Applicability to other proceedings : Rules 11-12The maxim actio personalis mortiur cum persona (a personal action dies with the
person) does not apply only to suits in those cases where the plaintiff dies
during the pendency of a suit but also to cases where the plaintiff dies during
the pendency of appeal or appeals. This is on the footing that by a reason of
the dismissal of the suit by the trial court or the first appellate court, as
the case may be, the plaintiff stands relegated to his original position before
the trail court.
Duty of pleader: Rule 10-A
Rule 10-A as inserted by the Amendment Act of 1976 imposes an obligation on the
pleader of the parties to communicate to the court the fact to the death of the
party represented by him.
As a general rule, on the death of the client , his contract with the pleader
comes to an end and so the authority of the pleader to act on behalf of his
client expires. Such a situation, however, creates many complications. A
provision is, therefore, made which imposes a duty on the part of the pleader to
inform the court of the death of his client. It also enacts that for the said
purpose the contract between the pleader and the party shall be deemed to
Duty of Court: Rule 10-ARule 10-A also casts duty on the court to give notice of death of party to the
other party. The duty is statutory and must be observed which is clear from the
words the court shall thereupon give notice of such death to the other party.
Effect of abatement: Rule 9Where the suit abates or is dismissed due to failure of the plaintiff to bring
the legal representative or representatives of the deceased party, no fresh suit
will lie on the same cause of action. The only remedy available to the plaintiff
or the person claiming to be the legal representative is to get the abetment set
Such abetment or dismissal of the suit, however, does not operate as res
General Principles With regard to the death of a party to a proceeding, from the various judgments
of the Supreme Court, the following general principles emerge:
- If an application is not made within the time allowed by law to bring
the legal representatives of the deceased defendant is concerned. Such
abatement is automatic and no specific order is envisaged by the Code.
- When once a suit or appeal is abated, a specific order setting aside
such abatement is necessary.
- Where in a proceeding, a party dies and one of the legal representatives
is already on record in another capacity, what is necessary is that he
should be described also an heir and legal representative of the deceased
party. Failure to describe him as such would not, however abate proceeding.
- If there are two or more heirs and legal representatives of the deceased
party and one or more have been brought on record within a time, a suit or
appeal will not abate on the ground that all the legal representatives have
not been brought on record in time.
- If the legal representatives of the deceased plaintiff or the deceased
defendant are brought on record within the prescribed period at one stage of
the suit, it will for the benefit of the subsequent stage of the suit.
- Where a plaintiff or an appellant after diligent and bona fide inquiry
ascertains who the legal representatives of deceased defendant or respondent
are, and brings them on record within the prescribed period, there is no
abatement of the suit or appeal if the impleaded legal representatives
sufficiently represent the estate of the deceased. The decree passed by the
court in a such case will bind not only those impleaded but the entire
- The above rule however does not apply where the impleading of a person
as a legal representative is not found too be bona fide or where there has been
fraud or collusion between the creditor and heir impleaded or there are other
circumstances which indicate that there has not been a fair or real trial.
- The doctrine of abatement applies to an appeal also.
- No suit can be filled against a dead person. But if a suit is filled
against a dead man without a knowledge that he is dead, it is non est. On an
application by the plaintiff, the court may permit to implead the right
defendant in the place of the deceased defendant. The court’s satisfaction
breaths life into the suit.
- Legal representatives of the deceased are entitled to take all the
contentions available to the deceased. But if they intend to take personal
or individual defences, they must get themselves impleaded in their personal
- On the death of the plaintiff, whether or not the suit/appeal abates
depends upon whether the suit/appeal is founded entirely on torts or on
- No decree can be passed in favour of or against a dead person. But such
a decree is not necessarily a nullity. In a certain circumstances, it is a
permissible for the court to reopen the proceedings or to remand the case
after hearing the parties likely to be affected thereby.
- A suit or appeal does not abate on account of the death of an
unnecessary, non-material or pro forma defendant or respondent.
- A suit filed in a representative capacity does not abate on the death of
one of the plaintiff’s nor a suit filed by a karta of a Hindu undivided family
abates on his death and the succeeding karta can continue the proceedings.
- Neither a suit nor an appeal abates where any party to a suit or an
appeal dies between the conclusion of hearing and the pronouncement of the
- If the parties proceed with the matter without raising any objection
regarding abatement of suit or appeal, no objection can be allowed at a
- Where no sufficient cause for condonation of delay for setting aside an
abatement is made out by the applicant, the suit or appeal requires to be
dismissed. A strong case on merits is not a ground for condonation for delay.
- Consideration for condonation for delay under Sec.5 of the Limitation Act
and for bringing heirs on record for setting aside abatement under Order 22 are
distinct and different.
- The expression sufficient cause should be constructed liberally to
advance substantial justice. A strict and pedantic approach should not be
taken by the court.
- A mere excuse about the plaintiff not knowing of the death of the
opposite party is not sufficient. He has to state reasons, which, according
to him, led to his not knowing of the death of the defendant within a
reasonable time and satisfy the court about it.
- Where a suit abates or dismissed for the non-substitution of the legal
representative or representatives of the deceased party, no fresh suit can
be filed on the same cause of action. However, the cause of action abated
suit may be invoked as a defence in a subsequent suit.
- The court has no inherent power under Section 151 of the Code to implead
legal representatives of deceased respondent if the suit had abated on
account of the appellate not taking appropriate steps within a time to bring
the legal representatives of the deceased party on record.
- When a suit or appeal abates, a very valuable right accrues to the other
party and such a right cannot be ignored or interfered with lightly. In the
name of doing substantial justice to one party, no injustice should be
done to the other party.
- Laches or negligence furnish no good grounds for setting aside abatement. A
party guilty of negligence must bear the consequences and must suffer. However,
if there is a sight negligence or minor laches which is not intentional in a not
making an application for setting aside abatement can be granted for doing
substantial justice. The rural background of the parties can also be taken into
account for this purpose.
- Where a joint and indivisible decree is passed by the court below in
favour of two or more plaintiffs and one of them dies and the defendant
fails to bring the heirs and the legal representatives of the deceased
plaintiff on record in time, the appeal against the other respondents also
- In cross-appeal arising from the same decree where parties to a suit
adopt rival positions, on the death of the party if his legal
representatives are impleaded in one appal it will not be enure for the benefit of cross appeal and
the same would abate.
- If an appeal as well as cross-objections in the appeal are before the
court and respondent dies, substitution of his legal representatives in the
cross-objections, being part of the same record, would enure for the benefit of
the appeal and the failure of the appellant to implead the legal representatives
of the deceased respondent would not have the effect of abating the appeal but
not vice versa.
- Though sufficient cause cannot be constructed liberally merely because
the defaulting party is the Government, yet delay in official business
requires a public justice approach. Certain amount of the latitude within
reasonable limits is permissible having regard to impersonal bureaucratic
set-up involving red-tapism.
- An order refusing to set aside abetment is not a decree within the
meaning of Section 2(2). The order, however, has been made appealable. But
neither second appeal nor Letters Patent Appeal is maintainable against such
Nature of inquiryA personal inquiry dies with the death of the person (acito personalis moritur
cum persona.) This doctrine, however, operates in a limited class of actions ex
delicto, discussed above.
A sues B for divorce. A dies. The cause of action does not survive to his
See also Melepurath v. Evelyn Sequeria 1986 SCC 118 AIR 1986
In the other actions, where the right to sue survives in spite of the death of
the person, the suit does not abate. Hence, whenever a party to suit dies, the
first question to be decided is as to whether the right to sue survives or not.
If the right is held to be a personal right which extinguishes with the death of
the person concerned and does not devolve on the legal representatives, there is
an end to the suit. But if the right to sue survives against the legal
representatives of the plaintiff, the suit can continue.
In M.Veerappa v. Evelyn Sequeria, the Supreme Court rightly stated:
If the entire suit claim is founded on torts the suit would undoubtedly
abate. If the action is founded partly on torts and partly on contract then
such part of the claim as founded entirely on contract then the suit
has to proceed to trail in its entirety and be adjudicated upon.
In Melepurath Sankunni v. Thekittil Geopalankutty, the Supreme Court held that
where a suit for defamation is dismissed and the plaintiff files an appeal, the
plaintiff-appellant seeks to enforce his right to sue for damages against the
defendant. The right to sue, therefore, does not survive on the death of the
plaintiff. But where such suit is decreed, even on the death of the plaintiff,
the legal representatives are entitled to continue the appeal since the question
relates to benefit or determinant to the estate of the deceased. In such case,
the cause of action merges with the decree.
InterpretationProvisions of Order 22 CPC are procedural and not penal in nature. They are
designated to advance justice. Substantive rights of the parties cannot be
defeated by strict adherence and rigid interpretation. On sufficient cause being
shown, delay in bringing legal representatives of the deceased (plaintiff or
defendant) can be brought by conditioning delay or setting aside abatement.
Suit against dead personNo suit can be filled against a dead person. Such a suit is non est and has no
legal effect. Likewise, a decree passed against a dead man is a nullity. But
where a suit is filled against a dead person by the plaintiff without knowledge
of such death, on the application by the plaintiff, the court may permit the
legal representatives of the defendant to be brought on record. On such
impleadment, the suit shall be deemed to have been instituted on the day the
plaint was presented. The court’s satisfaction breathes life into the suit.
Procedure where there is no legal representative
Rule 4-A has been added by the Amendment Act of 1976. It lays down the procedure
where there is no legal representative of a party who has died during the
pendency of the suit or a legal representative is not found. The underlying
object of this provision is that the other side should not suffer because of the
absence of the legal representative of the deceased party.
Partial abatementAn abatement of suit may be total or partial. If the entire suit is founded on
tort or on personal action, the suit would debate as a whole on the death of the
plaintiff or the defendant, as the case may be. But if the action is founded
partly on tort and partly on contract, the claim relating to tort will abate
whereas the claim relating to contract will survive.
Thus, if A files a suit against B, a trustee under Section 92 of the Code for
his removal as also for settlement of scheme and B dies during the pendency of
the suit; the suit will abate as regard his removal, but it can be continued as
regard settlement of scheme.
(II) Marriage Of The Party : Rule-7
The marriage of a female plaintiff or defendant shall not cause the suit to
abate. Where the decree is passed against a female defendant it may be executed
against her alone. A decree in a favour of or against a wife, where the husband
is legally entitled to the subject-matter of the decree or is liable for the
debt of his wife may, with the permission of the court, be executed by or
(III) Insolvency Of Party: Rule 8
Insolvency of plaintiffThe insolvency of plaintiff shall not cause the suit to abate and can be
continued by his Assignee or Receiver for the benefit of his creditors. But if
the Assignee or Receiver declines to continue the suit, or to give security for
costs, as ordered by the court, the court may, on the application of the
defendant, dismiss the suit on the ground of the plaintiff’s insolvency. The
court may also award the defendant costs for defending the suit, to be paid as a
debt against the plaintiff’s estate.
Insolvency of defendantRule 8 does not apply where the defendant becomes an insolvent. In such cases,
the court may stay the suit or proceeding pending against the defendant who has
been adjudged an insolvent. Rule 10 will also apply in those cases and a
receiver will become a representative of the defendant debtor.
(IV) Devolution Of Interest : Rule 10
Rule to enacts that if, during the pending of the suit, any interest in the suit
has passed from the plaintiff or defendant to any other person, the suit may
with the leave of the court be continued by or against the person in who favour
such interest is created.
Rule 10 is such is based on a principle that the trial of a suit cannot be
brought to an end merely because the interest of a party in the subject-matter
of the suit has devolved upon another during the pendency of the suit, but the
suit may be continued against the person acquiring interest with the leave of