Prof.

Hashmat Ali Khan

Department of Law
Aligarh Muslim University

STUDY MATERIAL
CIVIL PROCEDURE CODE-I
B.A.LL.B.(HONS) VIth SEMESTER
UNIT- IV

I. SETTLEMENT OF DISPUTE OUTSIDE THE COURT

(A) Introduction

Section 89 of Code of Civil Procedure which gives the court the power to refer the dispute for
settlement or conciliation with a purpose of amicable, peaceful and mutual settlement between
parties without intervention of the court.

(B) Object and Significance of Section 89

The main object to introduce Section 89 of CPC is to reduce the pendency on civil side and
also for amicable settlement between the parties. The number of cases keeps on rising day by
day while the adjudicators are limited. In light of the same, a provision is provided under
Section 89 of the Code which calls for settlement of disputes outside the courts. This section is
an attempt to bring about the resolution of disputes between parties, minimize costs and reduce
the burden of the courts. It is provided for with the sole objective of blending judicial and non-
judicial dispute resolution mechanism and bringing alternate dispute mechanism to the Centre
of Indian Judicial system and to ensure swifter and speeder justice. This section was introduced
with the parties of amicable, peaceful and mutual settlement between the parties without
intervention of the court.

(C) Settlement of Dispute outside the Court: Section 89

The Code of Civil Procedure,1908 (CPC) lays down the procedure which the courts will follow
to adjudicate any dispute brought before them. Section 89 of CPC empowers the civil courts to
refer matters to alternative dispute resolution methods – arbitration, conciliation, and judicial
settlement including Lok Adalat and mediation.

(1) Where it appears to the court that there exist elements of settlement which may be
acceptable to the parties, the court shall formulate the terms of settlement and give them to the
parties for their observations and after receiving the observations of the parties the court re-
formulate the terms of possible settlement and refer the same for-

(a) arbitration
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

(b) conciliation

(c) judicial Settlement including Settlement through Lok Adalat or

(d) mediation

(2) Where a dispute has been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996
(26 of 1996) shall apply as if the proceedings for arbitration of conciliation were referred for
settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the
provisions of sub-section (1) of Section 20 of the Legal Services Authorities Act, 1987 (39 of
1987) and all other provisions of that Act shall apply in respect of the dispute referred to the
Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and
such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal
Services Authorities Act, 1987 (39 of 1987) shall apply as if the dispute was referred to a Lok
Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow
such procedure as may be prescribed.

This method requires that there shall be Arbitration agreement between the parties. Section 89
pre supposes that there is no pre-existing arbitration agreement and envisages that the parties
to the suit can agree for arbitration when the choice of Alternative Dispute Resolution (ADR)
processes is offered to them by the court. Such agreement can be by means of a joint memo or
joint application or a joint affidavit before the court, or by an agreement recorded by the court
in the order sheet signed by the parties. Once this was done, a reference will be made to
arbitration and then onwards, the procedure laid down by arbitration and conciliation act 1996
will be made applicable as noticed by the Hon'ble Supreme Court in Salem Bar Association
v. Union of India1 the case will go outside the stream of the court permanently and will not
come back to the court. In the absence of agreement between the parties, court cannot refer the
suit for Arbitration.

1
AIR 2005 SC 3355.
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

For mediation which is a process for resolving the dispute with the aid of an independent third
person that assists the parties in disputes to reach a negotiated resolution. Mediation is referred
to suitable person or institution which is deemed to be Lok Adalat and like Lok Adalat consent
of parties is not necessary.

So far as conciliation is concerned it is a non-adjudicatory ADR process governed by

arbitration and conciliation Act 1996. If the settlement is not secured by conciliation, the matter
is returned to the court for proceeding with trial. So far as Lok Adalat Mediation and Judicial
Settlement is concerned these three ADR processes do not require the consent of parties for
reference. The court has to use its discretion in selecting the appropriate ADR method
judiciously, keeping in view the nature of disputes, interest of parties and expedition in dispute
resolution. If both parties filed joint memo to refer the matter to the Lok Adalat, on hearing
both parties can refer the matter to Lok Adalat after hearing on both parties and joint memo for
passing an award. As per the authority between State of Punjab v. Jalour Singh2,

“In mediation the court can refer the matter for mediator and after receipt of settlement
agreement before the mediation the court will make a decree in terms of agreement by
following the procedure under Order 23 Rule 3 CPC”.

The award passed before Lok Adalat for the offence under Section 138 of Negotiable
Instruments Act is a decree and it can be executable as per the citation between K.N. Govindan
Kutty Menon Vs. C.D. Shaji3, “every award passed before Lok Adalat is an executable order
under the signature and seal of the Lok Adalat”.

However, it is necessary that these alternatives are provided as part of the same time-tested
system which has acquired the confidence of the people because of its integrity and
impartiality.

As per the Act 22 of 2005 there is an amendment to AP court fees and suits valuation Act and
inserted.

Section 66-A refund of court fee: In any case referred by the court under Section 89 of CPC
to any one of the modes of settlement of dispute referred to any Section 89, the plaintiff shall
be entitled to a certificate from the court authorizing him to receive back from the collector the

2
(2008) 2 SCC 660.
3
2012 (3) ALD 28 (SC).
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

full amount of the fee paid in respect of said plaint and the said amendment was also circulated
by our Hon’ble High Court of AP in ROC No.1013/SO-1/2005, dt.19.11.2008.

(D) Procedure: Order 10

Steps to be taken at the first hearing of the suit: At the first hearing of the suit the court shall
ascertain from each party or his advocate whether he admits or denies such allegations of the
fact as are made in the plaint or written statement. The court shall record such admissions and
denials as per Order 10, Rule 1 of the Code of Civil Procedure.

Order X Rule 1(A): This order lays down for a direction by the Court to the parties to opt for
any one or more of alternative dispute resolution. The said direction shall be given by the Court,
after recording the admissions and denials, and at the option of the parties, the Court shall fix
a date of appearance before such forum or authority as may be opted by the parties for
conciliation under rule 1-B.

Order X Rule 1 (C): It is giving procedure for conciliation forum before whom the parties
appear, that on satisfaction that it would not be proper in the interest of justice to proceed with
the matter further, he has to refer the matter to the court and direct the parties to appear before
the court on the date fixed by it. Hon’ble Supreme Court suggested few changes in authority
between Afcons Infrastructure Ltd. Vs. Cherian Varkey Construction Company Ltd.4,

“It is not necessary for the Court, before referring the parties to an ADR process to formulate
or reformulate the terms of a possible settlement”.

It is sufficient if the court merely describes the nature of dispute and makes the reference.
According to tenor of Rule 1A of Order 10, the civil Court should invariably refer cases to
ADR Process. Only in certain recognized excluded categories of case, it may choose not to
refer to an ADR Process. Where the case is inapt for reference to any of the ADR process the
court will have to briefly record the reasons for not resorting to any of the settlement procedure
prescribed under Section 89 CPC. Thus, it was held that the actual reference to an ADR Process
in all cases is not mandatory.

(E) Applicability of provisions of Lok Adalat Act

Section 89(2)(b) of the Code of Civil Procedure also provides that where a dispute has been
referred to the Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with

4
2010 (6) ALD 155 (SC).
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

the provisions of sub-section 20 of the Legal Services Authority Act, 1987 and all other
provisions of that Act shall apply in respect of the dispute so referred to Lok Adalat. Parties
are entitled to refunding of full Court fee where the parties settled the matter without the
intervention of the Court. The Lok Adalat while resolving the disputes are guided by the
principles of justice, equity and fair play, and aim to settle the dispute by explaining the pros
and cons to the parties of their respective claims. Similar to the amendments made by the State
Government in Central Court Fee Act by virtue of the amendments to the code, the State
Government can also consider making similar amendments to State Court Fee Legislations.

(F) Conclusion

Section 89 is brought into the realm of Civil Procedure code with the objective to speed up the
process of adjudication in the court with the help of alternate dispute resolution mechanisms.
The Hon'ble Supreme Court of India gave guidelines to use ADR mechanism in pursuant to
section 89 of CPC in Salem Advocate Bar Association v. Union of India and thereafter in
Afcons Infrastructure Limited v. Cherian Varkey Construction Co., Private Limited for
the best results from section 89 of CPC.

2. SUMMARY SUIT: ORDER 37

(A)Introduction

Civil litigation, especially recovery suits generally termed to be a long-drawn battle and
regarded as something best avoided, is not so. The general belief that by filing a recovery Suit
against a Debtor will go on for years at large, is not so, if one knows the real scope of Order 37
of the Civil Procedure Code, 1908. The civil remedy for recovery of money is by way of
institution of a suit in a court of appropriate jurisdiction. The suit can be instituted under Order
37 of the said code, in case there is an admitted liability in the form of promissory note, hundies
etc. Order 37 is a summary procedure.

(B) Summary Suit: Order 37

Order 37 CPC is one of the best provisions in the hands of a proposed Plaintiff, wanting to
institute a Civil Suit. Broadly it states as under:

Rule 1, Sub-Rule 2 makes it applicable to all suits upon bills of exchange, hundies and
promissory notes or the ones in which a Plaintiff seeks only to recover a debt or liquidated
demand in money payable on a written contract, an enactment, where the sum to be recovered
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

is a fixed sum of money or in nature of any debt except penalty, a guarantee - in respect of a
debt or liquidated demand.

Rule 2 requires an Order 37 Suit to contain among others, a specific averment that the Suit is
filed under this Order and no relief which does not fall within the ambit of this rule is claimed.

Under Order 37, there are two stages of getting the Suit decreed. One is at the stage of Rule
2(3) and the other is at the stage of Rule 2(6).

Rule 2(3) states the procedure for appearance of Defendant which is within 10 days from the
service of the summons on him. After entering appearance, the Plaintiff serves on the
Defendant summons for judgment within ten days from the date of service supported by an
Affidavit; verifying the cause of action, amount claimed and that in his belief there is no
defence to the suit.

Rule 2(6) states that in case the Defendant does not apply for a leave to defend, (a) the Plaintiff
shall be entitled to judgment immediately or (b) the Court may direct the Defendant to give
such security as it may deem fit. Sub-clause 7 states that in case sufficient cause is shown, the
delay in entering an appearance or in applying for leave to defend the Suit may also be excused.

Rule 2(5) further states that the Defendant may within 10 days from service of such summons
for judgment by Affidavit or otherwise disclose such facts as may be deemed sufficient to
entitle him to defend, apply for leave to defend and it may be granted to him unconditionally
or upon such terms as may appear to the Court to be just. Further, the proviso indicates that
leave to defend shall not be refused unless the Court is satisfied that the facts disclosed do not
indicate a substantial defence or that the defence is frivolous or vexatious.

(C) Jurisdiction

Suit can be instituted at the place-

(i) where the Defendant resides,

(ii) place where he carries on business or personally works for gain or

(iii) the cause of action wholly or partly arises.

After determining this territorial jurisdiction, the pecuniary jurisdiction is required to be

determined. The value of the suit has to be considered for this purpose. Based on the value the
suit can be filed either in the District Court or the High Court.
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

(D) Limitation

The suit can be filed within 3 years from the date of cause of action having arisen. The said
period of limitation cannot be condoned.

(E) Institution of Suits and Essentials of Plaint

Order 37 is a summary procedure relying on the fact that there is an unambiguous written
admission of debt. The Order applies to the following class of suits:

(i)Suits upon bills of exchange, hundies and promissory notes

(ii)Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money
payable by the defendant, with or without interest arising-

• on a written contract, or

• on an enactment wherein the amount to be recovered is a fixed sum of money, or a debt other
than a penalty, or

• guarantee, where the claim against the principal is in respect of a debt or for liquidated demand
only.

• suit for recovery of receivables instituted by any assignee of a receivable.

A suit is instituted by way of a plaint. Plaint is the description of facts of the case and the exact
amount being claimed along with any interest. In case of a summary suit it should be
specifically averred that the suit has been filed under order 37, that no other claim has been
made other than what lies within the ambit of order 37.

Documents: The Plaint is to be accompanied by the supporting documents viz,

• written contract,

• particulars of claim and

• correspondences, if any

This plaint is required to be proved by way of an accompanying affidavit and an appropriate

verification of the facts.

Court fee: Court fee as per the schedule is required to be paid by the Plaintiff. A suit shall be
returned in case the same is not filed along with court fee.

Once the said plaint is filed in Court, the same shall be numbered by the Court.
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

(F) Proceedings after Institution

Issuance of summons: The Court after examining the plaint and its admissibility shall issue
summons which is required to be duly served upon the defendant. The summons for judgment
is required to be filed within 10 days from the date of service.

Leave to defend: The Defendant is obliged to enter appearance within 10 days of service of
summons. After entering appearance, the defendant shall be required to file its leave to defend
as in a summary suit the defendant does not have a right to contest till it proves that there is a
triable dispute and that the debt is not an admitted debt/liability.

Written statement: Only after the hearing on Leave to Defend and favourable order having
been passed in favour of the defendant. The defendant is entitled to file the Written Statement
within the timeline prescribed.

Trial and arguments: Trial commences hereinafter and after the final arguments the decree is
passed.

Decree: In case the defendant fails to enter appearance within 10 days of service of summons,
or in case even after appearance the defendant is not able to make out a case for deserving a
Leave to Defend, the suit is decreed in favour of the Plaintiff.

• Where the matter concerns penalties or any other uncertain amount, one cannot file a
summary suit.

• When there is no written contract or agreement between the parties, then a normal suit for
recovery has to be instituted.

(G) Execution of the Decree

Decrees can be executed by way of an Execution Application filed in the jurisdiction of the
place where the assets of the defendants are situated. In case of non-satisfaction of decree, the
code also provides for imprisonment for the defendants.

3. INTERPLEADER SUIT

(A) Introduction

Interpleader is civil procedure that allows a plaintiff or a defendant to commence a law suit in
order to require two or more other parties to litigate a dispute. An interpleader action originates
when the plaintiff holds property on another’s behalf or is in the possession of the property, but
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

does not know to whom the property should be transferred. It is often used to determine
disputes arising under insurance contracts.

In other words, Inter-pleader suit is a suit initiated by a person who has no express interest in
the subject-matter of the suit. In other words, if the plaintiff holds some article, things or
property (in which he is not having direct interest or he may be a warden or stake holder) and
if he is in a dilemma over the clashing claims of the defendants, he may file inter-pleader suit
in the competent court to have determination as to who is the actual owner of the article, things
or property.

It is a suit where there must be more than one defendant and the defendants contest against
each other for the property dispute. In an interpleader suit the plaintiff holds the movable or
immovable property and files the suit only to discover as to whom he should convey the
property because the defendants raise their claims on the property against each other or they
interplead against each other. In every interpleader suit, there must be some debt or sum of
money or other property in dispute between the defendants only. And the plaintiff must be a
person who claims no interest therein other than for charges or costs and who is ready to pay
or deliver the property to such of the defendants as may be decided by the court to be entitled
to the property.

(B) Interpleader Suit: Section 88, Order 35

Section 88 and Order 35 of the Civil Procedure Code, 1908 deals with the provision of
interpleader suit. The interpleader suit is a suit in which several claimants who are claiming the
property against each other. In such type of suit the matter in dispute is the title to the movable
or immovable property or money which is claimed by two or more persons against each other.

Meaning and definition of interpleader suit

Dictionary meaning of Interplead is to go to trial with each other in order to determine a right
on which the action of a third party depends. It is a civil procedure that allows a plaintiff or a
defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute.

The Halsbury’s Laws of England5 states that “Where a person is under liability in respect of
a debt or in respect of any money, goods or chattels and he is, or expects to be sued for or in

5
Fourth Edition, Volume 37, Para 264, p.200.
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

respect of the debt or money or those goods or chattels, by two or more persons making adverse
claims thereto, he may apply to the court for relief by way of interpleader.”

Where interpleader suit may be reinstituted (Section 88)

Where two or more persons claim adversely to one another the same debts, sum of money or
other property, movable or immovable, from another person, who claims no interest therein
other than for charges or costs and who is ready to pay or deliver it to the rightful claimant such
other person may institute a suit of interpleader against all the claimants for the purpose of
obtaining a decision as to the person to whom the payment or delivery shall be made and of
obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be
decided, no such suit of interpleader shall be instituted.

Object of interpleader suit: The main object of filing an interpleader suit is to get claims of
rival dependents adjudicated.

Essential Conditions for filing Interpleader Suit

a) There must be debt, sum of money or other movable or immovable property in dispute

b) There must be two or more persons claiming it adversely to one another

c) The person from whom such debt, money or movable or immovable property is claimed
must not be claiming interest therein other than two charges and cost and he must be ready and
willing to pay or deliver it to the rightful claimant.

d) There must be no suit pending wherein the rights of rival claimants and can be properly
adjudged.

Who can file Interpleader Suit: A person who has no interest in any debt, sum of money or
other property, movable or immovable, except the charges or costs and is ready to pay or deliver
the property to the rightful claimant may file an Interpleader suit.

Who cannot file Interpleader Suit :(Order 35, Rule 5) An agent cannot sue his principal or a
tenant his landlord for the purpose of compelling them to interplead with persons other than
persons claiming through such principles or landlords.

(C) Procedure: Order 37

Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

According to Order 35, Rule 1, in every interpleader suit, in addition to other statements, the
plaint shall state that the plaintiff claims no interest in the subject matter in dispute other than
the charges or costs. For example, when consigned goods are claimed by several parties, the
railway can bring an interpleader suit claiming only a lien for freight, demurrage etc.; the claims
made by the defendants severally, and that there is no collusion between the plaintiff and any
of the defendants.

Order 35, Rule 2, provides that where the subject matter claimed is capable of being paid into
Court or placed in the custody of the Court, the plaintiff may be required to so pay or place it
before he can be entitled to any order in the suit.

In the case of N.M.N. Duraiswami Chettiar v. Dindigul Urban Co-operative Bank Ltd6, it
was held that, on a dispute as to the ownership of the deposit arising between the customers
and the third person, an interpleader suit filed by the bank, would not come within the
prohibition of Order 35, Rule 5 of the Code of Civil Procedure, 1908.

(D) Conclusion

The law enshrined under the Section 88 and Order 35 stands to be one of the most important
civil laws. This provision is intended to protect person with a bona fide intent from future
condemn that he did not discharge his obligation or in other words it safeguards a person right
to costs of litigation who claims no interest in property or who is the plaintiff and to determine
the correct claim over the property or debt. If no such right is protected or overlooked by the
courts an appeal can filed before the appellate court under Order XLIII, Rule 1 of the Code of
Civil Procedure, 1908.

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES: ORDER 22

(A) Introduction

In a civil suit, any of the party to the suit dies and if right to sue survive then the suit can be
continued by the heirs or legal representative of the deceased party. If in any case where right
to sue does not survive the suit will come to an end. The most essential element which affects
the abatement of a suit after the death of party is the survival of right to sue; if that is there then
the suit can be continued.

6
AIR 1957 Mad 745.
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

The general rule is that suits and actions must be prosecuted by and against living parties. If a
person against whom a personal action may be brought dies before suit papers naming such
person as defendant have been filed with the court, then such suit papers may be amended to
substitute the decedent’s personal representative as party defendant. Considering the matter of
the abatement of an action by the death of a party, as well as the survival and revival of the
action, there is a clear difference between the action and the cause of action; a cause of action
may survive although a particular action based on it is abated by the death of a party.

Order 22 deals with the creation, assignment or devolution of interest during the pendency of
suits. It applies to appeal but not to execution proceedings.

Such creation, assignment or devolution may arise in the following circumstances:

(i) Death of a party (Rules 1 to 6)

(ii) Marriage of a party (Rule 7)

(iii) Insolvency of a party (Rule 8)

(iv) Assignment of interest (Rule 10)

(B) DEATH OF PARTY: ORDER 22 RULES 1-6

Meaning

Abatement, in law, means discontinuation, cessation, destruction, or elimination. The term is

used in several different contexts.

Abatement of an action is the cessation of a particular judicial proceeding because of some fact
not affecting the merits of the controversy. The commonest grounds for abatement are the
pendency of another suit or the death of a party. To abate a later suit, the pending suit must be
in the same jurisdiction, with the same parties and legal issues.

Formerly almost every change of interest after the commencement and before the termination
of proceedings caused an abatement or termination. But now a cause or matter shall not be
abated by the marriage, death or bankruptcy of any of the parties, if the cause of action survives,
nor shall it abate by changes in title during the pendency of the suit.

Right to sue

Rule 1 provides that the death of a plaintiff or defendant shall not cause the suit to abate if the
right to sue survives. “Right to sue” has not been defined in the code, but it may be interpreted
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

to mean “right to seek relief”. In other words, “Right to sue” survives if the cause of action
survives or continue.

An order holding that the right to sue did not survive after the death of the original plaintiff is,
in substance, an adjudication and final determination of the right of the legal representatives
and amounts to a decree under S. 2 (2) and an appeal is maintainable under Order XLI, Rule 1,
C.P.C.

As to cases in which the right to sue survives, the relevant provisions are to be found in Section
37 of the Indian Contract Act, 1872 and Section 306 of the Indian Succession Act, 1925.
Section 37 of the Indian Contract Act provides that “promises bind the legal representatives of
the promisors in case of the death of such promisors before performance unless a contrary
intention appears from the contract.” Such a contrary intention appears in contracts involving
the exercise of special skill or involving personal confidence.

Section 306 of the Indian Succession Act, in effect, provides that the right to sue does not
survive in suits for defamation, assault or other personal injuries not causing the death of the
party; and also in cases where after the death of the party, the relief sought could not be enjoyed
or granting it would be nugatory.

Applicability to other proceedings: Rules 11-12

The right to sue survives in actions such as suits for damages for breach of contract, suits for
recovery of property, suits for recovery of debt, etc. The right to sue does not survive in suits
to recover damages for breach of contract of marriage, death of father during pendency of the
suit for damages for seduction of daughter, etc. Death of the applicant for leave to sue in forma
pauperis also causes abatement.

Order 22 is not applicable to writ proceedings, or writ appeals. But after the death of the
respondent it is incumbent on the part of the petitioner, or appellant to substitute the legal heirs
of such respondent within a reasonable time.

Even if application is filed beyond 90 days the writ proceeding does not result in automatic
abatement. In appropriate cases the High Court can condone the delay in filing the substitution
application but the inaction of the petition be also taken into consideration to avoid undue
harassment to other party.
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

For instance, if the husband died after obtaining ex parte divorce decree against his wife. Wife
is entitled to move application for setting aside ex parte decree and legal heirs of deceased
husband can be substituted as opponents or respondents.

For example, An Allottee of plot was represented by widow and daughter and both the legal
representatives were already on record representing his estate. On the death of the widow the
appeal does not abate on account of failure to substitute legal representatives.

Legal Representatives

Where the party died after the appeal was heard but before the judgment, the aggrieved person
need not file an application in the High Court under Order 22, Rule 3 or 4. C.P.C., to bring on
record the legal representatives of the deceased-appellant or respondent and that it is enough
that the legal representatives of the deceased party are impleaded co-nominee in the appeal
filed against the judgment to represent the estate of the deceased respondent or appellant.

Determination of question as to legal representative

Where a question arises as to whether any person is or is not the legal representative of a
deceased plaintiff or deceased defendant, such question shall be determined by the Court.
(Order 22, Rule 5). In no case a decision under Order 22, Rule 5 would operate as res judicata
between the same parties or their successors-in-interest or their privies in a subsequent
proceeding even when the said parties had been provided an opportunity to contest the issue
and lead the evidence thereon. Such a proceeding is of a very summary nature against the result
of which no appeal is provided for.

When on death of defendant a person is impleaded as his legal representative as party

defendant. All rights under Order 22, Rule 4(2) and defences available to deceased become
available to such person. If such person wants to claim independent right, title and interest in
property then she had got herself to be impleaded in the suit as a party defendant. In which
event she could set up her own independent right, title and interest, to resist the claim made by
the plaintiff or challenge the decree passed in the suit.

Appeal would not abate due to failure of substitution of heirs of deceased when on the death of
one of defendants, other defendant who was representing all heirs of the deceased widow were
already on record.
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

Duty of pleader to communicate to Court death of a party: Order 22, Rule 10A7

Wherever a pleader appearing for a party to the suit comes to know of the death of that party,
he shall inform the Court about it, and the Court shall there upon give notice of such death to
the other party, and, for this purpose, the contract between the pleader and the deceased party
shall be deemed to subsist.

Procedure

Where there are more plaintiffs or defendants than one, and any of them dies, and where the
right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving
defendant or defendants alone, the court shall cause an entry to that effect to be made on the
record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against
the surviving defendant or defendants. (Order 22, Rule 2).

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.

Where within the time limited by law (i.e., within 90 days of the death) no application is made
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. (Order 22, Rule 3).

Where a plaintiff, who had filed a suit for partition against his sons, dies, the right to sue
survives to his widow and she can be added as the legal representative of the deceased plaintiff.

The death of the plaintiff during the pendency of the appeal in a personal action, e.g., suit for
declaration that the plaintiff’s retirement was illegal, abates and an application by the legal
representatives for bringing them on record and for continuance of the appeal is not
maintainable.

In a suit for damages against counsel on the death of the plaintiff the suit abates if the claim is
founded entirely on tort but survives if the claim is based entirely on contract. If the action is
founded partly on contract and partly on torts then such part of the claim as relates to contract
would survive and the other part would stand abated.

7
Ins. by Act No. 104 of 1976, sec. 73 (w.e.f. 1-2-1977).
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

A suit filed by citizens challenging municipal board’s interference in their civil rights and
amenities would not abate on the death of some of the defendants. It would abate against only
those particular defendants who died and whose legal heirs have not been brought on record
and in whose favour allotments of land have been made and permission granted, but not the
citizens’ civil right as a whole.

Death of one of several defendants or of sole defendant

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 representatives of the deceased defendant to. be made a party and shall proceed with the
suit. Where within the time limited by law (i.e., within 90 days of the death) no application is
made the suit shall abate as against the deceased defendant. (Order 22, Rule 4).

Effect of Abatement: Order 22 Rule 9

Where the suit abates or is dismissed due to failure of the plaintiff to bring the legal
representative or representatives of the deceased party, no fresh suit will lie on the same cause
of action. The only remedy available to the plaintiff or the person claiming to be the legal
representative is to get the abatement set aside.

Decree in relation to dead person

A decree passed in favour of a person who was dead at the date of the institution of the suit is
a nullity. Similarly, a decree passed against a defendant, who died pending the suit without
bringing the legal representative on the record is a nullity and cannot be executed against the
legal representative. A decree passed against a respondent in ignorance of the fact of his death
is also a nullity.

(C) MARRIAGE OF PARTY: ORDER 22, RULE 7

The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit
may notwithstanding be proceeded with to judgment, and where the decree is against a female
defendant, it may be executed against her alone.

Where the husband is by law liable for the debts of his wife, the decree may, with the
permission of the court, be executed against the husband also; and in case of judgment for the
Prof. Hashmat Ali Khan
Department of Law
Aligarh Muslim University

wife, execution of the decree may, with such permission, be issued upon the application of the
husband, where husband is by law entitled to the subject-matter of the decree.

(D) INSOLVENCY OF PARTY: ORDER 22, RULE 8

The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the
benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver
declines to continue the suit or (unless for any special reason the Court otherwise directs) to
give security for the costs thereof within such time as the Court may direct.

But, Where the assignee or receiver neglects or refuses to continue the suit and to give such
security within the time so ordered, the defendant may apply for the dismissal of the suit on the
ground of the plaintiff s insolvency, and the Court may make an order dismissing the suit and
awarding to the defendant the costs which he has insured in defending the same to be proved
as a debt against the plaintiffs estate.