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Code of Civil Procedure, 1908 · Order XXII: Death, Marriage And Insolvency Of Parties

Order XXII Rule 4 CPC: Procedure in case of death of one of several defendants or of sole defendant

Bare Act text

4. Procedure in case of death of one of several defendants or of sole defendant.—(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendants to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where—

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application with the period specified in the said Act, the Court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved.]

Amendment notes

  1. Ins. by Act 104 of 1976, s. 73 (w.e.f. 1-2-1977).

Text of the Code of Civil Procedure, 1908 (Act No. 5 of 1908), First Schedule, as amended, including the changes for commercial disputes made by the Commercial Courts Act, 2015. Source: India Code, Government of India.

In simple words

When a sole defendant dies, or one of several defendants dies and the right to sue does not survive against the others alone, the Court must, on application, join the deceased defendant's legal representative and proceed. That representative may make any defence suited to his character as legal representative. If no application is made in time, the suit abates against the deceased defendant. The Court may exempt the plaintiff from substituting representatives of a defendant who filed no written statement or did not contest at the hearing, and judgment may still be pronounced. Sub-rules (4) and (5), added by the 1976 amendment, also direct the Court to consider the plaintiff's ignorance of the death when condoning delay.

Order XXII: Death, Marriage And Insolvency Of Parties

  1. 1 No abatement by party’s death if right to sue survives
  2. 2 Procedure where one of several plaintiffs or defendants dies and right to sue survives
  3. 3 Procedure in case of death of one of several plaintiffs or of sole plaintiff
  4. 4 Procedure in case of death of one of several defendants or of sole defendant
  5. 4A Procedure where there is no legal representative
  6. 5 Determination of question as to legal representative
  7. 6 No abatement by reason of death after hearing
  8. 7 Suit not abated by marriage of female party
  9. 8 When plaintiffs insolvency bars suit
  10. 9 Effect of abatement or dismissal
  11. 10 Procedure in case of assignment before final order in suit
  12. 10A Duty of pleader to communicate to Court death of a party
  13. 11 Application of Order to appeals
  14. 12 Application of Order to proceedings
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