Civil Procedure Code, 1908 | Order XXII
Order 22 Rule 3 CPC: Procedure When a Plaintiff Dies
Order XXII Rule 3 of the Code of Civil Procedure, 1908 governs substitution of the legal representative of a deceased plaintiff where the right to sue survives, but cannot be exercised by the remaining plaintiffs alone. It also addresses abatement when the necessary application is not made in time.
Text of Order XXII Rule 3 CPC
Rule 3 - Procedure in case of death of one of several plaintiffs or of sole plaintiff
(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
Meaning and scope of Rule 3
Legal representative: Section 2(11) CPC defines a legal representative as a person who in law represents the estate of a deceased person, including 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. The term is not necessarily limited to legal heirs.
Right to sue survives: The claim or relief must be of a kind capable of continuing after the plaintiff's death. Whether it survives depends on the nature of the cause of action and the relief sought. Order XXII Rule 1 states that death alone does not cause abatement if the right to sue survives.
Surviving co-plaintiffs: If the entire right to sue survives to the remaining plaintiffs alone, Order XXII Rule 2 ordinarily governs and an entry of death is made on the record. If the deceased plaintiff's interest must be represented separately, Rule 3 applies.
Procedure to substitute legal representatives
- Inform the court of the plaintiff's death and identify the persons who represent the deceased plaintiff's estate.
- File an application under Order XXII Rule 3, generally within 90 days of death, supported by relevant facts and documents.
- Serve the application as directed by the court. If representation is disputed, the court determines the question under Order XXII Rule 5.
- After allowing substitution, the court updates the party description and continues the proceedings.
Under Order XXII Rule 10A, a pleader who learns of the death of a party represented by that pleader must inform the court; the court then gives notice to the other party. This duty does not, by itself, replace a required substitution application.
Limitation period, abatement and restoration
| Legal provision | Effect | Ordinary limitation |
|---|---|---|
| Order XXII Rule 3 CPC and Article 120, Limitation Act | Application to bring legal representatives of a deceased plaintiff on record | 90 days from the date of death |
| Order XXII Rule 9 CPC and Article 121, Limitation Act | Application to set aside abatement | 60 days from the date of abatement |
| Section 5, Limitation Act, 1963 | Condonation of delay on sufficient cause, where applicable | Subject to judicial satisfaction |
If the required substitution application is not filed within the prescribed time, abatement occurs by operation of law to the extent specified in Rule 3(2). Depending on the nature of the claims and parties, partial abatement may have wider consequences for the suit.
Order XXII Rule 9 allows an application to set aside abatement if sufficient cause prevented continuation. A delayed application may require a request for condonation of delay under Section 5 of the Limitation Act. Courts assess the explanation and circumstances of each case; restoration is not automatic.
Related CPC provisions
- Order XXII Rule 1: No abatement merely by death where the right to sue survives.
- Order XXII Rule 2: Death of one of several plaintiffs or defendants where the right survives exclusively to or against the survivors.
- Order XXII Rule 4: Procedure on death of a defendant.
- Order XXII Rule 5: Determination of who is a legal representative.
- Order XXII Rule 9: Effect of abatement or dismissal and setting aside abatement.
- Order XXII Rule 11: Application of Order XXII to appeals.
- Order XXII Rule 12: Rules 3, 4 and 8 generally do not apply to execution proceedings.
Practical example
Two plaintiffs jointly claim rights in inherited property. One dies while the suit is pending. If the deceased plaintiff's separate interest remains relevant to the dispute, the legal representative should ordinarily be brought on record under Rule 3. If the surviving plaintiff alone holds the entire surviving right to sue, Rule 2 may instead apply. The result depends on the pleadings and substantive rights.
Frequently asked questions
What is Order 22 Rule 3 CPC?
It provides for bringing the legal representative of a deceased plaintiff on record when the right to sue survives but does not survive to the remaining plaintiffs alone.
What is the time limit for substitution?
Article 120 of the Limitation Act, 1963 generally prescribes 90 days from the date of death for an application to bring legal representatives on record.
Can abatement be set aside?
Yes. Order 22 Rule 9 CPC provides a procedure to apply to set aside abatement, subject to limitation and sufficient cause. Article 121 generally prescribes 60 days from abatement.
Official legislation and further reading
Consult the official Code of Civil Procedure, 1908 (India Code) and Limitation Act, 1963 (India Code) for statutory provisions and amendments. Local amendments, special laws and binding judicial decisions may affect the procedure in a particular case.
This article is general legal information and does not replace advice based on the facts of a specific proceeding.