Assignment: Death of Parties under the Code of Civil

Procedure (CPC), 1908

Introduction
The Code of Civil Procedure, 1908 (CPC) forms the bedrock of civil litigation in India, providing
comprehensive procedural guidelines for courts and litigants. Civil suits are often protracted, and
during their pendency, significant events such as the death, marriage, or insolvency of a party can
threaten their continued progress. Recognizing these real-world contingencies, lawmakers have
embedded in the CPC, specifically through Order XXII, a set of rules designed to ensure that
justice is neither derailed nor denied due to such occurrences. These rules serve to harmonize
procedural efficiency with substantive fairness, safeguarding both the rights of successors and the
integrity of judicial processes. The focus of this assignment is on the implications of the death of
parties to a suit, with reference to related provisions regarding marriage and insolvency, and a
critical analysis of judicial interpretation and practical concerns.

Scope and Relevance of Order XXII

Order XXII of the CPC deals with the procedure to be followed on the death, marriage, or
insolvency of a party to a civil proceeding. Its scope includes ensuring that a suit does not abate or
get unduly delayed owing merely to the death of a litigant. This reflects the underlying policy of
allowing litigation to reach its logical conclusion, even in the face of unexpected personal
circumstances. The rules under Order XXII serve as safeguards, allowing legal successors or
representatives to be heard and the suit to proceed as far as it is just and equitable. The relevance
of these provisions cannot be overstated, as they directly affect the continuity of justice, the
economy of judicial resources, and the prevention of multiplicity of proceedings .

Key Terms and Concepts

A few key terms under Order XXII require clarification for a complete understanding of the topic.
'Right to sue survives’ refers to those cases where the cause of action continues to exist even after
a party’s death, such as property disputes or contractual claims. However, in purely personal
causes, such as defamation or divorce, the right does not survive and the suit abates. The
expression ‘legal representative’ is broader than ‘heir’, referring to anyone who represents the
estate of the deceased, be it through succession, will, or even possession of the estate. ‘Abatement’
refers to termination of proceedings with respect to the deceased party due to non-substitution
within the prescribed time, with significant legal consequences as no new suit on the same cause
of action is then permitted.

Procedural Aspects of Substitution and Abatement

The process of substitution under Order XXII is rooted in the balance between expediency and
fairness. Substitution of legal representatives is mandatory whenever the right to sue survives the
death of a party, and an application for substitution must be filed within ninety days from the date
of death. If this period lapses, the suit abates as against the deceased, unless sufficient cause for
delay is shown and the abatement is set aside by the court. The death of a plaintiff requires legal
representatives to come on record, or the surviving plaintiffs may continue if the right to sue
resides with them. Conversely, on the defendant’s death, it is usually the responsibility of the
plaintiff to apply for substitution, or else the claim against the deceased defendant abates. The
consequences of abatement are harsh, as the suit ends regarding the deceased and no fresh
litigation on the same matter is generally allowed. However, courts, in the interest of justice, often
adopt a liberal approach in setting aside abatement, provided adequate and reasonable cause for
delay in substitution is established.

Effect on Legal Representatives and Successors

The framework of Order XXII is consciously devised to protect the interests of legal
representatives and successors of the deceased party. Upon substitution, legal representatives
become parties to the litigation and can continue prosecution or defense for and on behalf of the
deceased’s estate. Their liability is typically limited to the extent of the assets inherited. The law
ensures that necessary continuity is maintained in the pursuit of justice, and that the death of a
party does not operate to the prejudice either of their heirs or of other parties seeking relief or
defense. If abatement occurs, legal representatives may still approach the court to set it aside,
provided they can establish valid reasons for not having intervened earlier.

Special Cases: Multiple Parties and Representative Suits

Complexities often arise in cases involving multiple plaintiffs or defendants. In the event one of
several parties dies and the right to sue survives among the others, the proceedings continue with
the surviving parties, and only abate concerning the deceased if no substitution occurs. A
particularly interesting scenario is represented by class action and representative suits conducted
under Order I Rule 8 CPC. Here, the death of the named representative does not abate the suit,
provided other suitably interested persons remain who can represent the wider class or group. The
law in this regard is flexible so as not to compromise the rights of a large class because of the
death of one or a few of their number. Furthermore, when the death of a party takes place after the
conclusion of the hearing but prior to judgment, Order XXII Rule 6 ensures that the judgment is
not stalled or nullified for this reason, so the eventual outcome reflects merits rather than
circumstantial misfortune.

Legal Provisions Involved

Death of Parties (Rules 1-6, 9, 10A)

Rule 1: States that the death of a plaintiff or defendant does not automatically cause the suit to
abate if the right to sue survives.

Rule 2: If the right to sue survives among others, the court notes the death and continues
proceedings with the surviving parties.

Rule 3 & 4: If the right to sue survives to legal representatives, substitution is mandatory within 90
days. Plaintiffs’ legal representatives must step in (Rule 3); similarly, in the case of a defendant’s
death, his/her legal representatives are substituted (Rule 4).

Rule 5: Empowers the court to decide disputes regarding who is the correct legal representative.

Rule 6: When a party dies after the conclusion of hearing but before judgment, the court may
pronounce judgment as if the party were alive.

Rule 9: If no substitution application is made within limitation, the suit abates as to the deceased
party. Setting aside abatement requires proof of “sufficient cause.”

Rule 10A: Imposes a duty on pleaders to inform the court promptly of their client’s death,
preventing unintended abatement.
 Critical Analysis
Judicial interpretation has played a significant role in shaping the effect and fairness of Order
XXII. In Budh Ram v. Bansi (2010), the Supreme Court highlighted the need for courts to prefer
substantial justice over technical defaults, urging liberal interpretation when condoning delays in
substitution or setting aside abatement. The case of State of Punjab v. Nathu Ram clarified that
entire suits abate if the right to sue does not survive against all defendants, while Rameshwar
Prasad v. Shambheharilal emphasized the importance of closely examining the nature of relief
sought to determine survivability. However, practical problems persist: parties may suffer
abatement due to ignorance of a party’s death, difficulties in tracing legal representatives, or
procedural delays, all of which can thwart access to justice. As such, there have been calls for
reforms—ranging from the use of digital notifications to legal heirs, better court record
management, and greater clarity from the judiciary on what constitutes ‘sufficient cause’ for delay.
The system would also benefit from simplified and expedited protocols for substitution, ensuring
that procedural lapses do not defeat legitimate claims or defenses .

Conclusion
Order XXII of the CPC is a robust safeguard ensuring that the process of civil litigation is not
unduly affected by the death, marriage, or insolvency of parties. The provisions under this Order
embody the philosophy that justice should be both effective and fair, recognizing the
unpredictability of life events. While the rules are well-drafted, actual effectiveness depends upon
awareness, prompt action by parties and counsel, and a responsive judiciary. Continued
modernization—in the form of digitized notifications and streamlined court procedures—will
further minimize the risk of procedural injustice. Ultimately, Order XXII provides a vital bridge
enabling justice to reach its destination, despite the unforeseen loss or incapacity of those engaged
in litigation.

Bibliography

 C.K. Thakker, Code of Civil Procedure, Eastern Book Company.

 Mulla, The Code of Civil Procedure, LexisNexis.

 Sarkar’s Code of Civil Procedure.

 Supreme Court Cases: Budh Ram v. Bansi (2010), State of Punjab v. Nathu Ram (1962),
Rameshwar Prasad v. Shambheharilal (1963).

 iPleaders, "A brief about provisions related to death, marriage and insolvency of parties."

 The Code of Civil Procedure, 1908.