Civil Procedure Code, 1908 | Order 22

Order XXII Rule 1 CPC - No Abatement on Death if Right to Sue Survives

Order XXII Rule 1 of the Code of Civil Procedure, 1908 establishes that the death of a plaintiff or defendant does not by itself terminate a civil suit where the right to sue survives. Whether the proceedings can continue depends on the nature of the right and compliance with the procedural rules governing deceased parties.

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Order XXII Rule 1 CPC - Statutory provision

Heading: 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.

This is the central rule in Order XXII, which deals with death, marriage and insolvency of parties. Read the provision in the official Code of Civil Procedure, 1908 (India Code).

Meaning of the rule and key legal terms

What is abatement?

Abatement is the procedural termination of a suit, wholly or to the extent of a deceased party, in circumstances prescribed by the CPC, commonly where necessary legal representatives are not brought on record within the applicable time. Death alone is not the same as abatement.

What does 'right to sue survives' mean?

A right to sue survives when the underlying cause of action or enforceable interest can continue despite the death of a party. Claims involving property, contractual rights and other transmissible civil interests may survive. A claim strictly personal to the deceased may not survive, depending on its legal nature and the applicable law.

Who is a legal representative?

Under Section 2(11) CPC, a legal representative is a person who in law represents the estate of a deceased person. The definition also covers a person who intermeddles with the estate and, where a party sues or is sued in a representative character, the person on whom the estate devolves on that party's death. A legal representative is not necessarily confined to a legal heir.

What happens when a party dies during a suit?

Survival to remaining parties: Under Order XXII Rule 2, if the right survives exclusively to the remaining plaintiffs or against the remaining defendants, the court records the death and the suit proceeds.
Death of a plaintiff: Under Rule 3, where substitution is required, an application must be made to bring the deceased plaintiff's legal representative on record.
Death of a defendant: Under Rule 4, legal representatives may need to be substituted, subject to the rule's exceptions.
Disputed representation: Rule 5 provides for the court to determine who is the legal representative for purposes of the proceedings.
Death after hearing: Rule 6 addresses death between conclusion of hearing and pronouncement of judgment.

Time limits for substitution and setting aside abatement

Under the Limitation Act, 1963, Article 120 generally prescribes 90 days from the date of death for an application to bring a deceased plaintiff's or defendant's legal representative on record. Article 121 generally prescribes 60 days from the date of abatement for an application to set aside abatement. These are distinct periods; applicable exclusions, condonation principles and special circumstances may affect individual cases.

Order XXII Rule 9 governs the effect of abatement and applications to set it aside on proof of sufficient cause. Section 5 of the Limitation Act may be relevant to delay in seeking relief, subject to applicable law.

Order XXII Rule 10A imposes a duty on a pleader who learns of a party's death to inform the court. Rule 11 applies Order XXII to appeals, with necessary modifications. Rule 12 excludes Rules 3, 4 and 8 from execution proceedings, subject to the governing procedural law.

Whether abatement is partial or affects the entire suit can depend on the separability of the relief, the nature of the decree sought and the interests of the parties. Courts may also apply relevant High Court or state procedural amendments; check the rules governing the particular court.

Official legal sources

This article explains the general central-law position. Procedural outcomes depend on the facts, relevant amendments and judicial orders.