Order XXII Rule 11 CPC: Application of Order to Appeals
Order 22 Rule 11 extends the procedural provisions concerning death, marriage and insolvency of parties to civil appeals, so far as those provisions can appropriately apply.
Text of Order XXII Rule 11
In the application of this Order to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal.
Meaning and scope of Rule 11
Rule 11 is an interpretation and application provision. It ensures that the relevant rules of Order XXII operate in an appeal as well as in an original suit. For this purpose, references to a plaintiff include an appellant, references to a defendant include a respondent, and references to a suit include an appeal. The words "so far as may be" mean that the provisions are applied with adjustments appropriate to appellate proceedings.
The rule does not independently create a right of appeal or prescribe a separate period of limitation. It operates together with the other rules of Order XXII and the Limitation Act, 1963.
Death of an appellant or respondent during an appeal
Under Order XXII Rule 1, proceedings do not abate merely because a party dies if the right to sue survives. Where a deceased appellant or respondent must be represented for the appeal to continue, Rules 3 and 4, read with Rule 11, provide for bringing the legal representatives on record. Where the surviving parties alone can fully represent the continuing right or liability, Rule 2 may be relevant.
Under Rule 5, a dispute about whether a person is a legal representative is determined by the court. Rule 10A addresses the pleader's duty to communicate the death of a party to the court. The effect of non-substitution, including abatement and applications to set it aside, is governed principally by Rule 9.
Time limits for substitution and setting aside abatement
- Article 120, Limitation Act, 1963: ordinarily 90 days from the date of death to apply to bring a deceased appellant's or respondent's legal representative on record.
- Article 121, Limitation Act, 1963: ordinarily 60 days from the date of abatement to apply to set aside abatement.
- Section 5, Limitation Act, 1963: may permit condonation of delay on sufficient cause being shown, subject to applicable law and judicial determination.
If substitution is not sought within the prescribed time, abatement may occur by operation of law to the extent applicable. An application under Order XXII Rule 9 may be required to set it aside. Whether an appeal abates wholly or only against a particular party depends on the nature of the rights and the circumstances of the case.
Other relevant provisions of Order XXII
Rule 6 concerns death after the conclusion of hearing and before pronouncement of judgment. Rule 7 states that a suit does not abate by marriage of a female party. Rule 8 addresses insolvency of a plaintiff in specified circumstances. Rule 10 concerns assignment, creation or devolution of an interest during proceedings. These provisions are read with Rule 11 where appropriate to appeals.
Rule 12 provides that Rules 3, 4 and 8 do not apply to proceedings in execution of a decree or order. This distinction matters because an appeal and an execution proceeding are not treated identically under Order XXII.
Illustration
Suppose an appellant dies while a civil appeal is pending and the right to pursue the appeal survives. An eligible person may seek substitution of the deceased appellant's legal representatives under Order XXII Rule 3 read with Rule 11. If the application is not made in time, the court may need to consider abatement, an application to set it aside and any request to condone delay before the appeal can proceed.
Frequently asked questions
Does Order 22 Rule 11 apply to civil appeals?
Yes. It makes Order XXII applicable to appeals so far as the relevant provisions can be applied.
Does every death during an appeal cause abatement?
No. The right to sue must be examined, and the necessity of substitution depends on the parties and the nature of the dispute.
What is the usual time for substitution?
Article 120 of the Limitation Act ordinarily provides 90 days from the date of death, subject to applicable exceptions and judicial orders.
Official legal sources
Code of Civil Procedure, 1908 - India Code (official PDF)
India Code - Central Acts and amendments
Limitation Act, 1963 - High Court hosted text