Report No. 150

Chapter 4

Order XXII, Rule 9(3)

4.1. Order XXII deals with the steps to be taken in a suit when death, marriage and insolvency of parties supervene after a suit is instituted. We are concerned here only with a case of death of the plaintiff in an action. Rules 1 to 6 provide that the death of a party shall not cause a suit to abate if the right to sue survives and that the suit may be allowed to be continued by the legal representatives of the deceased party on an application being made by them for being substituted in the suit in the place of the deceased party. Rule 3(2) provides, however, that the suit shall abate if legal representatives of a deceased plaintiff fail to make such an application to be brought on record within the period specified therefor-which is 90 days from the date of death'.

1. Vide Article 175A of the Schedule to the 1877 Act, Article 176 of the Schedule to the 1908 Act and Article 120 of Schedule to the 1963 Act.

4.2. Rule 9 provides an escape hatch from this situation. It reads (in so far as is relevant for our present purpose):

"9.(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the Indian Limitation Act, 1877, shall apply to applications under sub-rule (2)."

4.3. The rule is clear and unambiguous. An application to set aside the abatement had to be filed within a period of 60 days from the date of the abatement (Article 171 of the Schedule to the 1877 and 1908 Acts; Article 121 of the Schedule to the 1963 Act). A relaxation of this rigid rule was, however, necessary since there could be circumstances which prevented such an application being filed in time.

Section 5 of the Indian Limitation Act, 1877 empowered the Court, on sufficient cause being shown, to condone the delay in filing of "any appeal or application for review of judgment or any application to which this section is made applicable for the time being in force" and admit the same after the prescribed period. In view of the underlined words, it became necessary to add sub-rule (3) specifically making the provisions of section 5 of the 1877 Act applicable to applications made under Order XXII, rule 9(2) of the Code.

4.4. As mentioned earlier, the 1877 Act was replaced by the 1908 Act which in turn was replaced by the 1963 Act. While section 5 of the 1908 Act substantially repeated the language of section 5 of the 1877 Act, the corresponding section 5 of the 1963 Act which has to be read in to Order XXII, rule 9(3) of the Code by virtue of section 8 of the General Clauses Act has been worded differently. It reads (in so far as it is relevant here):

"5. Extension of prescribed period in certain cases: Any appeal or any application other than an application under any provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period, if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

The change in language is significant. The power of condonation of delay available under section 5 of the 1963 Act has become available automatically in respect of all applications made to a Court under the Code (with the one exception mentioned therein) and it is no longer necessary, for such power to be exercised, that the provisions of section 5 should find an explicit reference in the relevant statute.

4.5. The need for sub-rule (3) of Order XXII, rule 9 therefore, no longer survives. It is true that its presence is only superfluous. However, in order that such a specific provision in respect of only one of the innumerable categories of applications that can be made under the Code and its obsolete reference to the 1877 Act may not create anomalies or apprehensions, and in view of its patent superfluity, it is advisable that sub-rule (3) of rule 9 of Order XXII of the Code be omitted. We, therefore, recommend accordingly.