Order 22 Rule 2 CPC: Procedure When One of Several Plaintiffs or Defendants Dies

Order XXII Rule 2 of the Code of Civil Procedure, 1908 governs continuation of a civil suit when one of multiple plaintiffs or defendants dies and the right to sue survives exclusively in favour of the surviving plaintiffs or against the surviving defendants.

Text of Order XXII Rule 2 CPC

Meaning and legal effect

The rule addresses a situation in which a party dies during a pending suit but the claim or liability remains fully enforceable by or against the surviving parties. The court records the death and the fact that the right to sue survives. The suit then continues with the remaining parties; substitution of the deceased party's legal representatives is not required under Rule 2 in this situation.

Conditions for applying Rule 2

• There must be two or more plaintiffs or two or more defendants.
• One of those plaintiffs or defendants dies while the suit is pending.
• The right to sue must survive to the remaining plaintiffs alone or against the remaining defendants alone.
• The court must make an appropriate entry in the suit record before proceedings continue.

Procedure before the court

The surviving party should bring the death to the court's attention and explain why the entire right to sue continues with the survivors. On being satisfied that Rule 2 applies, the court records the death and permits the suit to proceed. Whether the right survives exclusively depends on the nature of the claim, the parties' interests and the relief sought; it cannot be presumed merely because other parties remain on record.

Difference between Rules 2, 3 and 4 of Order XXII

Rule 2: The right to sue survives solely to or against the surviving parties, so the suit continues without bringing the deceased party's legal representatives on record.

Rule 3: If a plaintiff dies and the right to sue does not survive to the surviving plaintiffs alone, the deceased plaintiff's legal representative ordinarily must be brought on record in accordance with the rule.

Rule 4: If a defendant dies and the right to sue does not survive against the surviving defendants alone, the deceased defendant's legal representative ordinarily must be brought on record, subject to the rule's exceptions.

Does a suit abate when a party dies?

Under Order XXII Rule 1, death does not cause abatement where the right to sue survives. Where Rule 2 applies, the suit proceeds with the surviving parties. If Rules 3 or 4 instead require substitution, failure to apply within the prescribed period may result in abatement as provided by those rules, subject to applicable relief under Rule 9 and limitation law.

Illustrative example

Suppose two plaintiffs jointly sue to enforce a right that, under the governing substantive law and the facts, belongs wholly to the survivor after one plaintiff dies. The court may record the death and allow the surviving plaintiff to continue under Rule 2. If the deceased plaintiff's estate retains an interest requiring representation, Rule 3 rather than Rule 2 may apply.

Relevant legal provisions and official sources

Order XXII, Rule 2: Continuation where the right to sue survives to or against the remaining parties alone. Order XXII, Rules 3 and 4: Procedure involving legal representatives where survival is not exclusive. Order XXII, Rule 9: Effect of abatement or dismissal and applications to set aside abatement. Section 2(11) CPC: Defines a legal representative as a person who in law represents the estate of a deceased person, including specified persons who intermeddle with the estate or on whom the estate devolves in a representative capacity.

Read the Code of Civil Procedure, 1908 on India Code and consult the applicable First Schedule, Order XXII, including any relevant State or High Court amendments.

This article explains the general central CPC framework. Local amendments, procedural rules and case-specific circumstances may affect the result.