Understanding the Application of ‘Order 22: Abatement and Survival of Suits’ under the CPC

Jurisdiction and scope: India—ordinary civil suits and civil appeals governed by the central Code of Civil Procedure, 1908. State amendments, High Court rules, special statutes and the procedural law applicable to the particular court must be checked separately. Execution proceedings are addressed only to explain Order XXII rule 12.

Law checked: 2 October 2026. Next review: 2 April 2027.

Short answer

A party’s death does not itself abate a suit if the right to sue survives. Where substitution is required, identify the correct provision immediately and ordinarily move within 90 days from death under Article 120 of the Limitation Act. If abatement has occurred, seek to set it aside under Order XXII rule 9; Article 121 prescribes 60 days from the date of abatement. File a section 5 delay application whenever any relevant limitation period has expired and explain the entire delay with evidence.

When Order XXII applies

Order XXII deals with death, marriage and insolvency of parties. Rule 11 applies the Order to appeals by reading “plaintiff,” “defendant” and “suit” as including the corresponding appellate parties and proceeding. Rule 12 expressly provides that rules 3, 4 and 8 do not apply to execution proceedings. Do not copy the substitution timetable into an execution matter without checking the governing execution law and local rules.

Procedure

1. Record the death and determine whether the right survives. Obtain the death certificate and identify the cause of action and relief. Rule 1 says there is no abatement merely by death where the right to sue survives. If one of several parties dies and the surviving parties alone represent the complete surviving interest, rule 2 permits the court to record the death and proceed.
2. Select rule 3 or rule 4. Rule 3 governs the death of a sole plaintiff or one of several plaintiffs where the right survives but the surviving plaintiffs cannot alone continue. Rule 4 is the corresponding provision for a sole defendant or one of several defendants. State every proposed legal representative’s identity, relationship, address and basis of representation.
3. Apply within the Article 120 period. Article 120 of the Limitation Act gives 90 days, running from the date of death, for bringing the legal representative of a deceased plaintiff, appellant, defendant or respondent on record. Serve the application and supporting material as the court directs. Do not calculate from counsel’s later knowledge unless a binding local rule or judgment permits that treatment.
4. Address abatement expressly. Under rules 3 and 4, failure to substitute within the time limited by law causes abatement so far as the deceased party is concerned. If the period has passed, combine or accompany the substitution request with an application under rule 9 to set aside abatement and, where needed, an application under section 5 of the Limitation Act. Article 121 gives 60 days from the date of abatement for the rule 9 application.
5. Prove sufficient cause for delay. Rule 9(2) permits the court to set aside abatement where the applicant proves sufficient cause for not continuing the suit. Give a dated chronology, explain when and how the death was discovered, identify steps taken to locate representatives, and exhibit supporting records. Rule 9(3) expressly applies section 5 of the Limitation Act to an application under rule 9.
6. Resolve disputed representation under rule 5. If the status of a proposed legal representative is disputed, the court determines that question. Avoid converting substitution into a final adjudication of beneficial ownership: the immediate issue is who represents the estate for conducting the proceeding.
7. Check the special rules. Rule 4(4) permits exemption from substitution for a deceased defendant who failed to file a written statement or, after filing it, failed to appear and contest. Rule 4A addresses cases where no legal representative exists. Rule 6 prevents abatement where death occurs after conclusion of the hearing but before judgment. Rule 7 says marriage of a female plaintiff or defendant does not cause abatement. Rule 8 concerns insolvency of a plaintiff, not death or marriage. Rule 10 governs assignment, creation or devolution of an interest during the suit.
8. Comply with counsel’s notification duty. Rule 10A requires a pleader who learns of a client’s death to inform the court; the court then gives notice to the other party. Build a file-opening and hearing checklist that captures party deaths promptly.

Documents and decisions checklist

• Certified or verifiable death record and the exact date of death.
• Pleadings, reliefs and a short note explaining why the right to sue survives.
• Names, addresses and relationship documents for every proposed representative.
• Substitution application under the correct rule, supported by affidavit.
• Rule 9 application and section 5 application if limitation has expired.
• Complete delay chronology with correspondence, searches and other proof.
• Draft amended memo of parties.
• Check for a will, probate proceeding, administrator, succession dispute or estate representative.
• Check state amendments, High Court rules and the law governing the particular court.

Common errors

• Saying rule 1 makes death automatically abate the suit; it says the opposite where the right survives.
• Treating rule 4 itself as the source of the 90-day period; that period comes from Article 120 of the Limitation Act.
• Seeking substitution after abatement without also asking that the abatement be set aside.
• Ignoring the separate 60-day Article 121 period.
• Assuming marriage of a female party causes abatement.
• Applying rules 3, 4 and 8 mechanically to execution proceedings despite rule 12.

Official sources

Automated research disclosure: This note was reconstructed from the official central statutory texts. It does not replace checking the forum’s current rules, state amendments, special-statute procedure and the authorities binding that court.