Order XXII of the Code of Civil Procedure, 1908 answers a recurring question: what happens to a pending suit, appeal or execution proceeding when a party dies, marries, or is adjudicated insolvent? The rules — twelve in all — turn on a single doctrinal anchor. If the right to sue survives, the proceeding continues, with the legal representative of the deceased substituted on the record. If the right to sue does not survive, the proceeding abates. The maxim actio personalis moritur cum persona — a personal cause of action dies with the person — sets the outer limit. Section 306 of the Indian Succession Act, 1925 and Section 37 of the Indian Contract Act, 1872 supply the substantive content.

The terminology of legal representative, devolution of interest, and abatement runs throughout — for the precise statutory meaning of "legal representative" under Section 2(11), see the chapter on definitions and important concepts. For the judiciary aspirant, three things are heavily examined. First, the right-to-sue test — which causes of action survive death and which abate. Second, the procedural mechanics — who must apply, within what time, in which court, and with what consequence if the application is missed. Third, the carve-outs — Rule 4(4) exempting the plaintiff from substituting the legal representatives of an unrepresented defendant; Rule 4A providing for representation when no legal representative exists; Rule 9 setting aside abatement; Rules 10 and 10A handling assignment of interest and counsel's duty to inform.

Statutory anchor and scheme

Order XXII contains twelve rules. Rule 1 declares the foundational principle — the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 2 deals with one of several plaintiffs or defendants dying where the right to sue survives to the surviving plaintiffs or against the surviving defendants alone — the court simply records the death and proceeds. Rule 3 covers the death of a sole plaintiff (or one of several plaintiffs where the right does not survive to the survivors alone): the legal representative must be brought on record on application. Rule 4 is the corresponding provision for defendants. Rule 4A, inserted in 1976, provides for cases where the deceased has no legal representative.

Rule 5 empowers the court to decide whether a person is or is not the legal representative of a deceased party. Rule 6 deals with death between conclusion of hearing and pronouncement of judgment — no abatement in such a case, the judgment may be pronounced as if the party were alive. Rule 7 handles the marriage of a female plaintiff or defendant. Rule 8 covers insolvency. Rule 9 — heavily examined — provides the route to set aside an abatement or dismissal under Rule 3 or Rule 4. Rule 10 governs assignment, creation or devolution of interest pending suit. Rule 10A imposes a duty on the pleader of the deceased party to inform the court of the death. Rule 11 makes Order XXII applicable to appeals. Rule 12 carves out execution proceedings from the abatement consequences of Rules 3, 4 and 8. The companion provisions in Order I on parties to a suit govern the parallel question of who may be impleaded as a party to begin with.

Right to sue — when it survives, when it does not

Rule 1 itself is silent on what causes the right to sue to survive. The question is answered substantively by Section 306 of the Indian Succession Act, 1925: all demands and all rights to prosecute or defend any action existing in favour of or against a person at the time of his decease survive to and against his executors or administrators — except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. Section 37 of the Indian Contract Act, 1872 adds the contractual layer: promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract. Contracts involving special skill or personal confidence — a painter to paint a picture, a singer to sing — do not bind representatives.

The Supreme Court in M. Veerappa v. Evelyn Sequeira AIR 1988 SC 506 read the words "other personal injuries not causing the death of the party" in Section 306 as ejusdem generis with "defamation" and "assault" — both delict categories — so a suit against counsel based partly on contract and partly on tort survived to the legal representative as to the contractual portion and abated as to the tortious portion. The cluster of rights the courts have held to survive is wide: rights to sue for damages for breach of contract, on a promissory note, on a debt, on a mortgage, for wrong done to property, for accounts against an agent, for partition, for specific performance, for possession, for customary pre-emption. The cluster that does not survive is narrower: defamation, assault, malicious prosecution, malicious arrest, breach of contract of marriage, breach of contract involving special skill, excommunication, the right to claim ipersonal honour at a temple, the right to a religious office.

The eviction line is exam-favourite. Phool Rani v. Naubat Rai AIR 1973 SC 2110 held that a suit for eviction on the ground of personal requirement of the landlord abates on the landlord's death because the personal cause of action does not survive. Ashok Kumar v. Ved Prakash AIR 2010 SC 2960 distinguished the rule — where the original landlord had pleaded that the requirement was for his son who became the landlord on the original landlord's death, the eviction proceeding does not abate. The same matrix applies to matrimonial proceedings. Yallawwa v. Shantavva AIR 1997 SC 35 held that where a husband sues for divorce and obtains an ex parte decree, then dies, the wife's right to apply to set aside the decree survives — her status as wife or widow is at stake. The rule also cooperates with the doctrine of res judicata in the chapter on res sub judice and res judicata under Sections 10 and 11: an order of abatement, once made, operates as a judgment in favour of the surviving party to the same extent as a judgment on merits, as Rahim v. Srinivasa (1920) settled.

Procedure on death of one of several parties — Rules 2, 3 and 4

Where there are more plaintiffs (or defendants) than one and the right to sue survives to the surviving plaintiffs (or against the surviving defendants) alone, Rule 2 applies. The court simply causes an entry of the death to be made on the record and the suit proceeds at the instance of (or against) the survivors. No application for substitution is required. The test, as Shankru Mahto v. Bhoju Mahto AIR 1936 PC 56 set out, is whether the surviving plaintiffs can alone sue (or the surviving defendants can alone be sued) in the absence of the deceased.

Where the right to sue survives but not to the surviving plaintiffs (or against the surviving defendants) alone — for example, where the deceased was the sole plaintiff, or where the deceased held a separate, divisible interest — Rule 3 (for plaintiffs) and Rule 4 (for defendants) apply. The legal representative of the deceased must be made a party on application. The application must ordinarily be made by the plaintiff or appellant, but there is nothing to prevent the legal representative herself, or any other interested party, from applying. The court must, on the application, hear all parties and pass an order substituting the legal representative on the record. The substitution discipline echoes the broader pleading rules in the chapter on general principles of pleading under Order VI.

Limitation, abatement and Article 120 of the Limitation Act

The application under Rule 3 or Rule 4 must be made within ninety days from the date of the death of the deceased plaintiff or defendant — Article 120 of the Limitation Act, 1963. Limitation runs from the date of death and not from the date of knowledge of death. Where the application is not made within ninety days, the suit abates as against the deceased — Rule 3(2) for plaintiffs, Rule 4(3) for defendants. Abatement is automatic — no formal order of abatement is required. Madan Naik v. Hansubala Devi AIR 1983 SC 676 held that an order recording abatement is not a decree and is not subject to second appeal.

Whether the suit abates only as against the deceased or as a whole turns on the nature of the cause. The test is whether the suit (or appeal) can proceed in the absence of the legal representative of the deceased. If it can — for example, where the interest of the deceased is severable from that of the survivors — the abatement is partial. If it cannot — for example, where the decree sought would be joint and indivisible, or where allowing the appeal as against the survivors alone would produce two inconsistent decrees in the same litigation — the abatement is total. State of Punjab v. Nathu Ram AIR 1962 SC 89 is the leading authority on the inconsistent-decree test. Sardar Amarjit Singh Kalra v. Pramod Gupta (2003) 3 SCC 272 — a five-judge Constitution Bench — held that Order XXII is not penal in nature; it is a procedural rule, and the substantive rights of the parties cannot be defeated by a pedantic approach.

Rule 9 provides the route to revive an abated suit. The plaintiff (or appellant) may apply to set aside the abatement within sixty days from the date of abatement — Article 121 of the Limitation Act, 1963. The court may also condone the delay under Section 5 of the Limitation Act on sufficient cause being shown. Sub-rule (3), inserted in 1976, requires the court to have due regard to the fact that the plaintiff was ignorant of the death, if proved. The Supreme Court in State of M.P. v. S.S. Akolkar AIR 1996 SC 1984 held that the considerations for setting aside abatement are different from those for condoning delay simpliciter — the inquiry is calibrated to the nature of the omission. The companion route in execution — substitution of the legal representative of a deceased judgment-debtor under Section 50 — is treated in the chapter on execution of decrees, general principles under Sections 36 to 74.

Rule 4(4) — exemption where the defendant did not contest

Rule 4(4) — added in 1976 — gives the court discretion to exempt the plaintiff from the necessity of substituting the legal representatives of any 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. Judgment may then be pronounced against the said defendant notwithstanding his death and shall have the same force and effect as if pronounced before death. The Supreme Court in Mata Prasad Mathur v. Jwala Prasad Mathur (2013) 13 SCC 200 and Sushil K. Chakravarty v. Tej Properties Pvt Ltd (2013) 14 SCC 70 confirmed that the exemption may be invoked to prevent abatement where the deceased defendant never appeared to contest the suit. But the exemption must be obtained before pronouncement of judgment — T. Gnanavel v. T.S. Kanagaraj AIR 2009 SC 2367 held that an ex parte decree passed in ignorance of the death of the sole defendant is a nullity, and exemption granted after the decree cannot retrospectively validate it.

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Rule 4A — also inserted in 1976 — provides for the situation where the deceased party has no legal representative or where the legal representative cannot be traced. The court may, on the application of any party, proceed in the absence of a person representing the estate of the deceased, or it may by order appoint the Administrator-General, or an officer of the court, or such other person as it thinks fit, to represent the estate of the deceased for the purpose of the suit. Any judgment given in the suit binds the estate to the same extent as if a personal representative had been a party. Sub-rule (2) requires notice to persons interested in the estate and ascertainment that the proposed representative is willing to be appointed and has no adverse interest. Pulakesh Dutta v. Rasaraj Dey AIR 2000 (Gauhati) treated an application under Rule 4A as itself an application for setting aside abatement. The Supreme Court in Pragati Mahila Mandal, Nanded v. Municipal Council, Nanded AIR 2011 SC (CivAA) extended the underlying logic to public-interest writ proceedings: where the sole petitioner dies, the court may issue notice through media inviting interested persons to take up the petitioner's role, transpose a non-contesting respondent as petitioner, or proceed as if it had taken suo motu cognizance.

Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or defendant, Rule 5 requires the court to determine that question. The proviso, inserted in 1976, allows an appellate court to direct a subordinate court to try the question and return its findings. Rule 5 is mandatory — Nisapati v. Gyarsi Bai AIR 1982 (MP) held that a person cannot be informally added as a legal representative without an inquiry. The court of first instance must determine the question; if it fails to do so, the appellate court must. The determination is, however, only for the purpose of representation of the estate — it is not a final adjudication of heirship or succession, as Pritam Singh v. Arjun Singh AIR 2011 (Jharkhand) and Jaladi Sugna v. Satya Sai Central Trust AIR 2008 SC 2866 confirmed. Where there are several legal representatives, it suffices if at least one is impleaded after a bona fide and diligent inquiry — the decree binds the entire estate, including those not brought on record, in the absence of fraud or collusion. Mohd. Sulaiman v. Mohd. Ismail AIR 1966 SC 792 is the foundational decision on the doctrine of substantial representation.

Rule 6 — death after hearing concluded

Rule 6 carves out a narrow but important exception. Notwithstanding anything in the foregoing rules, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncement 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 embodies the maxim actus curiae neminem gravabit — an act of the court shall prejudice no one. The judgment is entered up nunc pro tunc, taking effect as if pronounced when the hearing concluded. The discipline ties into the broader rule, treated in the chapter on judgment and decree under Section 33 and Order XX, that judgment must be pronounced on the merits after due hearing.

Rule 7 — marriage of a female party

Rule 7 deals with the marriage of a female plaintiff or defendant. The discipline ties into the rules on capacity to sue treated in the chapter on institution of suits under Sections 26 to 35B. Sub-rule (1) declares that the marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with to judgment. Sub-rule (2) provides that where the decree is against a female defendant, it may be executed against her alone, and where the husband is by law liable for the debts of his wife, the decree may with the permission of the court be executed against the husband also. The rule reflects the historical position when separate property of married women was a contested doctrine — modern personal-law statutes have made the second limb largely redundant in practice, but the formal rule survives.

Rule 8 — insolvency of plaintiff

Rule 8 deals with insolvency of a plaintiff. The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors shall not cause the suit to abate, unless the assignee or receiver declines to continue the suit or, when required by the court, fails to give security for the costs thereof within such time as the court may direct. Sub-rule (2) provides that where the assignee or receiver neglects or refuses to continue the suit and to give such security, the defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency, and the court may make an order dismissing the suit and awarding the defendant the costs which he may have incurred in defending the suit, to be proved as a debt against the plaintiff's estate.

Rule 9 — setting aside abatement

Rule 9 is the safety-valve. Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action — sub-rule (1). The plaintiff (or person claiming to be the legal representative of a deceased plaintiff) may apply for an order to set aside the abatement, and if satisfied that there was sufficient cause for not continuing the suit, the court shall set aside the abatement upon such terms as to costs or otherwise as it thinks fit — sub-rule (2). The application must be made within sixty days from the date of abatement (Article 121 of the Limitation Act). Sub-rule (3) — added in 1976 — directs the court, in considering an application under Section 5 of the Limitation Act, to have due regard to the fact that the applicant was ignorant of the death of the deceased party, if proved.

The Supreme Court has consistently taken a liberal view. Sardar Amarjit Singh Kalra v. Pramod Gupta (2003) 3 SCC 272 held that procedural rules under Order XXII must not defeat substantive rights. Banwari Lal v. Balbir Singh (2016) 1 SCC 622 confirmed that even where the strict procedure of Order XXII has been bypassed and an application made under Order I Rule 10 read with Section 151, the court should not non-suit the parties on technicalities — though Banwari Lal also clarified that the proper procedure remains the route under Order XXII. The discipline parallels the discretion under inherent powers of the court under Section 151, but Rule 9 is the specific statutory route.

Rule 10 — assignment, creation or devolution of interest

Rule 10 deals with cases other than death — assignment, creation or devolution of interest pending the suit. 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. The rule covers situations like sale of the suit property by the plaintiff during the pendency of the suit, change of trustee, succession to a religious office. Sitabai v. Masjid Nurun Mohalla Jingerwadi AIR 1979 (Bombay) held that where a suit is brought in a representative or trustee capacity, the substitution route on death of the representative is Rule 10 and not Rules 3 or 4 — and Rule 10 carries no fixed limitation period.

Rule 10A — inserted in 1976 — imposes a duty on the pleader of the deceased party. Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he is duty-bound to inform the court about the death, and the court shall thereupon give notice of such death to the other party. The provision is meant to obviate cases of surprise — where the plaintiff was unaware of the defendant's death and the suit consequently abated. The discipline ties into the procedural ethics treated alongside the chapter on recognised agents and pleaders under Order III.

Rule 11 — application to appeals; Rule 12 — application to execution

Rule 11 makes Order XXII applicable to appeals — in the application of Order XXII to appeals, the word "plaintiff" includes an appellant, the word "defendant" includes a respondent, and the word "suit" includes an appeal. The same ninety-day limitation under Article 120 applies to substitution of legal representatives in appeal. The same sixty-day route under Article 121 applies to setting aside abatement. The Order applies to first appeals and second appeals alike. It also applies to revisions, though not in terms — the courts have read in the underlying principle, as Bhajju Lal v. Bechey Singh AIR 1950 (Pat) accepted. Order XXII does not, however, apply to writ proceedings — the Explanation to Section 141 of the Code, inserted in 1976, makes that explicit. Puran Singh v. State of Punjab AIR 1996 SC 1092 nevertheless held that the High Court may allow substitution of a legal representative in writ if the delay is not intentional. The framework dovetails with the structure of first appeals from original decrees under Order XLI.

Rule 12 carves out execution proceedings: nothing in Rules 3, 4 and 8 shall apply to execution proceedings. The reason is that execution against the legal representative of a deceased judgment-debtor is governed by Section 50 — there is no abatement; the decree-holder may apply to bring the legal representative on the record at any time during the currency of the execution proceeding. Where the judgment-debtor dies pending execution, the decree-holder is entitled to continue the execution against the legal representative under Section 50, subject to the legal-representative's liability being limited to the property of the deceased that has come into his hands. The rule mechanics mesh with Order XXI on the procedure of execution.

Special situations — preliminary decree, joint Hindu family, partnership

Three situations recur in the case-law and the prelims. First, where the death occurs after the preliminary decree but before the final decree, the rule is unsettled. Lachmi Narain v. Bal Mukund (1924) 51 IA 321 held that a decree, once passed, confers rights and imposes liabilities which are fixed until the decree is reversed in appeal — so abatement does not ordinarily apply between the preliminary and final decree. The Allahabad, Bombay and Patna High Courts have consistently held Rule 4 inapplicable to deaths after the preliminary decree. Where it is necessary to bring the legal representative on record at the final-decree stage, the route lies in Order I Rule 10 and Section 151.

Second, where the deceased party was a karta of a joint Hindu family, the succeeding karta can be substituted, provided the family continues in existence — Gujarat State Transport Corpn v. Valji Mulji Soneji AIR 1980 SC 2061. The technical objection that the application was made under the wrong rule (Rule 10 instead of Rule 4) does not by itself defeat substitution. Third, where the deceased was a partner in a firm, the surviving partners may continue the suit on behalf of the firm; substitution of the legal representative of the deceased partner is necessary only where the suit is one for partnership accounts or where the deceased partner's interest is severable from that of the firm. The framework sits adjacent to the parties-and-representatives discipline of Order II on frame of suit and cause of action.

MCQ angle and recurring distinctions

Three distinctions recur. First, the difference between Rule 2 (no application required, court records death and proceeds) and Rule 3 / Rule 4 (substitution required on application). Rule 2 applies only where the right to sue survives to the surviving plaintiffs (or against the surviving defendants) alone — a question of severability of interest. Second, the difference between Rule 4(4) (exemption from substituting an unrepresented defendant) and Rule 4A (representation where no legal representative exists). The first applies where there is a legal representative but the deceased never contested; the second applies where there is no legal representative at all. Third, the difference between Article 120 (ninety days for substitution under Rule 3 or Rule 4) and Article 121 (sixty days for setting aside abatement under Rule 9). Limitation under Article 120 runs from the date of death; limitation under Article 121 runs from the date of abatement.

Two more points are exam-favourites. Rule 12 carves execution out of Rules 3, 4 and 8 — there is no abatement of execution; substitution of the legal representative of a deceased judgment-debtor is governed by Section 50. And Order XXII does not apply to writ proceedings — the Explanation to Section 141 makes that explicit, though courts have read in the underlying principle on a discretionary basis. Mastery of Rules 1 to 12 sets up the parallel chapter on withdrawal and adjustment of suits under Order XXIII, where the question of unilateral termination of a pending suit is treated, and the chapter on restitution under Section 144, where the rights of the legal representative on reversal of a decree are worked out.

Frequently asked questions

What is the limitation period for bringing the legal representative on record after the death of a party?

Ninety days from the date of the death of the deceased party — Article 120 of the Limitation Act, 1963. Limitation runs from the date of death, not from the date of knowledge of death. Where the application is not made within ninety days, the suit abates as against the deceased automatically; no formal order of abatement is required. The plaintiff or appellant may then apply within sixty days of the abatement to have it set aside under Order XXII Rule 9 (Article 121), and may also apply for condonation of delay under Section 5 of the Limitation Act, with sub-rule (3) of Rule 9 directing the court to give due regard to ignorance of the death if proved.

Does a suit for eviction abate on the death of the landlord?

It depends on the ground of eviction. The Supreme Court in Phool Rani v. Naubat Rai AIR 1973 SC 2110 held that a suit for eviction on the ground of the landlord's personal requirement abates on the landlord's death because the personal cause of action does not survive. But Ashok Kumar v. Ved Prakash AIR 2010 SC 2960 distinguished the rule — where the original landlord had pleaded that the requirement was for his son who became the landlord on the original landlord's death, the eviction proceeding does not abate. For other grounds — non-payment of rent, sub-letting, breach of tenancy condition — the cause of action attaches to the property and survives to the heirs of the landlord.

Is it necessary to bring all the legal representatives of the deceased on record?

No. The Supreme Court in Mohd. Sulaiman v. Mohd. Ismail AIR 1966 SC 792 held that a decree obtained against only some of the heirs binds the estate, provided the plaintiff has after diligent and bona fide inquiry ascertained who the legal representatives are and brought them on record within time. The impleaded legal representatives sufficiently represent the estate, and the decision binds the entire estate including those not impleaded — in the absence of fraud or collusion. The doctrine is one of substantial representation. It does not, however, apply where the omission is mala fide or where the omitted heir's interest is not represented by those on record.

Does Order XXII apply to writ proceedings?

No, not in terms. The Explanation to Section 141 of the Code, inserted in 1976, makes it clear that the provisions of Order XXII do not apply to writ proceedings. The rules of automatic abatement on non-substitution within ninety days do not apply. But the death of the respondent cannot be ignored — the High Court may allow substitution of a legal representative in writ if the delay is not intentional, as the Supreme Court held in Puran Singh v. State of Punjab AIR 1996 SC 1092. In public-interest writ where the sole petitioner dies, Pragati Mahila Mandal v. Municipal Council, Nanded AIR 2011 SC has set out a flexible framework — notice through media, transposition of respondents, or suo motu continuation.

Does Order XXII apply to execution proceedings?

Only partly. Rule 12 expressly excludes Rules 3, 4 and 8 from application to execution proceedings. There is no abatement of an execution proceeding on the death of the judgment-debtor. The decree-holder may continue the execution against the legal representative of the deceased judgment-debtor under Section 50 of the Code, subject to the legal-representative's liability being limited to the property of the deceased that has come into his hands. The other rules of Order XXII — including Rule 5 on determination of the legal representative and Rule 10 on devolution of interest — apply to execution proceedings.

What happens when the appeal abates against one of several appellants — does it abate as a whole?

It depends on whether the cause of action against the survivors can be effectively adjudicated in the absence of the legal representative of the deceased. The test laid down in State of Punjab v. Nathu Ram AIR 1962 SC 89 is whether allowing the appeal as against the surviving appellants would produce two inconsistent decrees in the same litigation about the same subject matter. If yes — for example, where the decree is joint and indivisible, or where the interest of the deceased is interlinked with that of the survivors — the appeal abates as a whole. If no — for example, where the deceased held a divisible share that has now passed to his heirs as separate property — the abatement is partial and the appeal proceeds against the surviving appellants alone.