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Report No. 54

22.1. Various "incidental proceedings" are dealt with in Orders 22 to 26. The first is dealt with in Order 22, relating to procedure in suits when a party dies, marries or becomes insolvent, or where otherwise there is an assignment of the interest of a party in the subject-matter of the suit. These rules were originally taken from the Common Law Procedure Act1 and from the relevant Rules of Courts in England.

1. Common Law Procedure Act, 1854 (15 & 16 Vict., C. 6.).

Scheme of Order 22

22.1A. Very briefly stated, the Scheme of Order 22 is as follows so far as the effect of death is concerned: The mere death of a party does not cause the suit to abate, if the right to sue survives. But, if the right to sue survives and a party dies during the pendency of the suit, an application must be made within the prescribed period1 to the court, to make the legal representative of the deceased person a party to the suit. If this is not done, the suit abates-not by reason of death only, but by reason of death of the party followed by non-substitution of his legal representative. Primarily, the suit abates "so far as the deceased plaintiff is concerned" or "as against the deceased defendant as the case may be"-Order 22, rule 3(2) and rule 4(2).

But, if the nature of the cause of action is such that the suit cannot proceed by or against the surviving plaintiffs or defendants, the whole suit may abate. Even after abatement, the suit can be revived by making an application to the court to set aside the abatement for sufficient cause. The application for the purpose must be made within the prescribed period, the court has however, power to condone delay in making the application. This Order also deals with the effect of marriage and insolvency on pending suits. But these provisions do not cause which difficulty in practice. It is the provisions as to the effect of death which are important and we shall deal with a few of them which have caused difficulty.

1. Questions as to limitation are governed by the Limitation Act, 1963l see para. 22.5, infra.

Order 22, rule 4-power to relax-whether should be given

22.2. The first point concerns Order 22, rule 4, under which non-substitution of a legal representative heads to abatement of the suit. The question whether the Court should, in a proper case, have power to grant exemption in respect of the requirement of substitution of the legal representative was considered in the earlier Report.1 The Commission noted that local amendments giving such power had been made by the High Courts of Calcutta, Madras, Orissa, etc. in respect of a defendant who has failed to appear and contest the suit. It, however, felt that such a change should not be made, as it would impinge upon the rule that litigation should not proceed in the absence of the heirs of a person who is dead. These local Amendments were not, therefore, adopted.

1. 27th Report, note on Order 22, rule 4, Relaxation of.

22.3. We considered the matter further. At one stage we were inclined to add sub-rule (4) in Order 22, rule 4 as follows:-

"(4) The Court, whenever it seems fit, may exempt the plaintiff from the necessity to substitute the legal representative of any defendant against whom the case has been allowed to proceed ex parte or who has failed to file his written statement or who, having filed it, has failed to appear and contest at the hearing, and the judgment in such a case may be pronounced against such defendant notwithstanding the death of such defendant, and shall have the same force and effect as if it had been pronounced before the death took place.

22.4. We have, however, come to the conclusion that any such amendment would amount to passing a decree against a dead man and would be wrong in principle. Hence no change is recommended.

Order 22 rule 4 and ignorance of death

22.5. On the death of a party, the plaintiff is, under the rules, required to move for the substitution of his legal representatives. The application for substitution has to be made within the time prescribed by the Limitation Act1. On failure to do so, the suit abates. Now, when the plaintiff is ignorant of the defendant's death, there may be delay in making the application for substitution of his legal representative, and the question whether the delay due to such ignorance should be excused for the purpose of limitation has arisen in several cases, it being competent to the court to excuse delay under section 5, Limitation Act, 1963, provided there is sufficient reason. How far ignorance of the death of the party concerned is a sufficient ground, would depend on the facts of each case2-3.

1. The period for substitution is 90 days (Article 120, Limitation Act, 1963), and the period for application for setting aside the abatement is 60 days (Article 121, Limitation Act, 1963).

2. (a) Union of India v. Ram Charan, AIR 1964 SC 215 (220).

(b) AIR 1951 Sim 257.

3. Also (1969) 69 Punj LR 956, cited in the Yearly Digest.

22.6. It was for the last-mentioned reason that the earlier Commission, in its Report on the Code,1 after discussing the position as above, considered it unnecessary to make an express provision as to ignorance of death as a sufficient ground. At one stage we were inclined to think of a solution whereunder due regard could be had to the fact of ignorance of death, while considering an application under section 5, Limitation Act, for condonation of delay in respect of an application for setting aside the abatement. This could be achieved by the insertion of the following sub-rule in Order 22, rule 4-


(a) the plaintiff was ignorant of the death of a defendant, and, could not, for that reason, make an application for substitution of the legal representative under this rule within the prescribed period as provided in the Limitation Act, 1963;

(b) the suit has, in consequences, abated; and

(c) the plaintiff applies for setting aside the abatement and also for admission of that application after the prescribed period under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within such period; the Court shall, in considering the application under the said section, have due regard to the fact of such ignorance, if proved".

1. 27th Report, note on Order 22, rule 4, and ignorance of death.


22.7. But we are separately recommending a new rule1 which imposes a duty on the pleader to inform the court about the death of a party. Hence a provision as to the effect of ignorance is needed.

1. See Order 22, rule 10A (New) (Proposed), para. 22.22, infra.

Order 22, rule 4A (New) (Appointment of person to represent the estate)

22.8. In the earlier Report1, a suggestion received from the Calcutta High Court for the insertion of a provision to deal with cases where the legal representative of a deceased party was not traceable, was also considered. Reference was, in this connection, made to Order 16, rule 46 of the Rules of the Supreme Court,-now Order 15, rule 15 of the R.S.C. Revision (1962). The adoption of a somewhat similar provision was suggested in a judgment of the Calcutta High Court2 also, and the suggestion was repeated in another case3.

1. 27th Report, note on Order 22, rule 4 and legal representative not traceable.

2. William Harold Gibbs v. Deba Prasad Roy, (decided on 17-3-1950), 85 Cal lj 280.

3. Goods of Golam Nabi Maggo (in re:), dated 15-5-1961.

22.9. The English rule on the subject is intended to cover two cases; first, where litigation is intended to be started but there is no "personal representative", and secondly, where litigation has already started, and then a party dies and there is no personal representative. History of the English rule is discussed in a judgment of the Court of Appeal1, and the under mentioned authorities2-3 discuss the practice under the English rule.

1. Paratt v. London Passenger Transport Board, (1937) 1 All ER 473 (478) (Court of Appeal).

2. Lean v. Alston, (1947) 1 All ER 261.

3. Halsbury, 3rd Edn., Vol. 16, pp. 121, 134, 392 (and Vol. 9, p. 176 for County Courts).

22.10. The earlier Commission, after considering the above material, came to the conclusion that such cases would not be many, and therefore, the provision suggested by the Calcutta High Court need not be inserted.

22.11. But it appears to us that such a provision would be useful. With increasing urbanisation and growing complexity of society, cases where the legal representative cannot be ascertained, are likely to increase; and a specific provision to meet such situation would be desirable.

22.12. The English provisiOn is wide enough to cover death before the litigation; but we are concerned only with death during the pendency of the litigation. We also consider it useful to give some indication of the persons who could be appointed.

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