Code of Civil Procedure, 1908 | Order 45

Order XLV Rule 9A CPC - Power to Dispense with Notices in Case of Deceased Parties

Order XLV Rule 9A of the Code of Civil Procedure, 1908 (CPC) provides a limited exception to the requirement to serve notices on the legal representatives of certain deceased opposite parties or respondents in proceedings concerning appeals to the Supreme Court. It also prescribes alternative notice by court-house affixture and newspaper publication for specified notices.

Key point: The exemption is conditional. It applies where the deceased opposite party or respondent did not appear either at the hearing before the court whose decree is challenged or in any proceedings after that court's decree. The proviso still requires public notice for the proceedings specified in Order XLV Rule 3(2) and Rule 8.

Order XLV Rule 9A CPC - statutory provision

Nothing in these rules requiring any notice to be served on or given to an opposite party or respondent shall be deemed to require any notice to be served on or given to the legal representative of any deceased opposite party or deceased respondent in a case, where such opposite party or respondent did not appear either at the hearing in the Court whose decree is complained of or at any proceedings subsequent to the decree of that Court:
Provided that notices under sub-rule (2) of rule 3 and under rule 8 shall be given by affixing the same in some conspicuous place in the court-house of the Judge of the district in which the suit was originally brought, and by publication in such newspapers as the Court may direct.

Meaning and scope of Rule 9A

Rule 9A addresses a procedural difficulty that can arise when an opposite party or respondent has died and did not participate at the relevant stages of the earlier proceedings. In the circumstances defined by the rule, the court need not require individual service of notices prescribed by Order XLV on that person's legal representatives. It is not a general power to dispense with notice to every legal representative of a deceased litigant.

Conditions for dispensing with individual notice

The person concerned was an opposite party or respondent and has died.
That person did not appear at the hearing in the court whose decree is the subject of the proposed appeal.
That person also did not appear in any proceedings subsequent to the decree of that court.
The notice in question is one otherwise required under the rules of Order XLV.

The conditions are cumulative as to non-appearance: if the deceased person appeared at either of the stated stages, the special dispensation should not be assumed to apply. The court should examine the procedural record before relying on Rule 9A.

Mandatory alternative notice under the proviso

Even where individual notice to a deceased party's legal representatives is dispensed with, the proviso expressly requires notice under Order XLV Rule 3(2) and Order XLV Rule 8 to be given through both specified channels:

Affixture: the notice must be affixed in a conspicuous place in the court-house of the judge of the district where the suit was originally instituted.
Newspaper publication: the notice must also be published in the newspaper or newspapers directed by the court.

These are statutory safeguards. Dispensing with personal service does not mean that the court can omit the alternative forms of notice required by the proviso.

Order XLV Rule 3(2): deals with notice to the opposite party to show cause against the grant of a certificate for appeal to the Supreme Court. Order XLV Rule 8: governs steps after security and deposit requirements have been satisfied, including declaration of admission, notice to the respondent, transmission of the record and authenticated copies. Rule 9A modifies notice requirements in the limited circumstances described above.

Order XXII CPC: generally addresses death of parties, substitution of legal representatives and abatement in suits and appeals. Rule 9A is a special notice provision within Order XLV and should not be read as automatically removing every other applicable requirement concerning representation of a deceased party's estate.

Section 109 CPC and Articles 133 and 134A of the Constitution: concern the statutory and constitutional framework for certificates permitting civil appeals to the Supreme Court. Article 136: separately provides the Supreme Court's discretionary special-leave jurisdiction. Rule 9A should not be confused with a general procedure for every special leave petition.

Practical application

Before invoking Rule 9A, the applicant should identify the deceased party, establish the relevant non-appearance from the record and request appropriate directions for notices covered by Rule 3(2) or Rule 8. The court may determine the newspapers in which publication is to occur. Proof of affixture and publication should be preserved as part of the procedural record.

Illustration: A respondent did not appear before the court whose decree is challenged and took no part in later proceedings. The respondent subsequently dies before a certificate proceeding under Order XLV. If Rule 9A's conditions are satisfied, personal service on that respondent's legal representatives is not required by the notice provisions of Order XLV; however, the notices mentioned in the proviso must still be affixed and published as directed.

Frequently asked questions

Does Rule 9A apply whenever a respondent dies?

No. It applies only where the deceased respondent or opposite party did not appear at either of the stages identified in the rule.

Can the court dispense with newspaper publication?

For notices under Rule 3(2) and Rule 8 to which the proviso applies, the text requires both court-house affixture and newspaper publication as directed by the court.

Does Rule 9A itself grant permission to appeal to the Supreme Court?

No. It deals with notice. The certificate and appeal requirements arise under other provisions, including Order XLV, Section 109 CPC and the Constitution.

Official legal resources

This explanatory article describes the central CPC provision. Applicable amendments, current Supreme Court Rules, court directions and case-specific orders should be checked before taking procedural steps.