Order XXII of the Code of Civil Procedure, 1908, governs the abatement of suits in Indian civil litigation. It outlines procedures when parties to a suit experience events like death, marriage, or insolvency during the pendency of the case. Understanding these provisions is crucial for law students to navigate the complexities of civil procedure effectively.
MEANING AND EXPLANATION
Abatement refers to the cessation or termination of a legal proceeding without a final determination on the merits, primarily due to specific events affecting the parties involved. Under Order XXII CPC, such events include:
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Death of a Party:
If a plaintiff or defendant dies during the pendency of a suit, and the right to sue does not survive, the suit abates concerning the deceased party. However, if the right to sue survives, the legal representatives can be substituted to continue the proceedings. -
Marriage of a Female Party:
The marriage of a female plaintiff or defendant does not cause the suit to abate. The suit may proceed, and any decree against a female defendant can be executed against her alone. -
Insolvency of a Party:
The insolvency of a plaintiff does not automatically lead to abatement. The assignee or receiver may continue the suit unless they decline or fail to provide security for costs as directed by the court.
LEGAL PROVISIONS AND PROCEDURES
Order XXII CPC comprises several rules detailing the procedures to be followed in cases of death, marriage, or insolvency of parties:
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Rule 1: States that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
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Rule 2: Addresses situations where one of several plaintiffs or defendants dies, and the right to sue survives to the remaining parties. In such cases, the court records the death, and the suit proceeds with the surviving parties.
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Rule 3: Pertains to the death of one of several plaintiffs or a sole plaintiff. If the right to sue survives, the court, upon application, substitutes the legal representative of the deceased plaintiff. Failure to apply for substitution within the prescribed time results in abatement concerning the deceased plaintiff.
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Rule 4: Deals with the death of one of several defendants or a sole defendant. Similar to Rule 3, if the right to sue survives, the legal representative can be substituted. Non-application within the stipulated period leads to abatement against the deceased defendant.
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Rule 9: Provides the procedure for setting aside abatement. An application must be made, demonstrating sufficient cause for the failure to continue the suit. The court may set aside the abatement upon satisfactory explanation.
TIME FRAME FOR SUBSTITUTION
The Limitation Act, 1963, prescribes specific periods for substitution applications:
- 90 days: To file an application for substitution from the date of death of the party.
- 60 days: To set aside the abatement from the date of abatement.
Failure to adhere to these timelines results in abatement, necessitating an application under Order XXII Rule 9 to set aside the abatement, accompanied by a request for condonation of delay under Section 5 of the Limitation Act.
CASE LAWS AND JUDICIAL INTERPRETATIONS
Several landmark judgments have elucidated the principles of abatement under Order XXII:
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Union of India v. Ram Charan, AIR 1964 SC 215:
The Supreme Court emphasized that the right to sue survives if the cause of action continues despite the death of a party. In this case, the court held that the suit does not abate if the right to sue survives to the legal representatives. -
Perumon Bhagvathy Devaswom v. Bhargavi Amma, (2008) 8 SCC 321:
The court outlined conditions for condoning delays in substitution applications, highlighting the necessity of prompt action by the parties. It was held that ignorance of death does not automatically constitute sufficient cause for setting aside abatement; due diligence is required. -
Balwant Singh (Dead) v. Jagdish Singh & Ors., (2010) 8 SCC 685:
The Supreme Court clarified that liberal approaches in condoning delays should not override the legislative intent of prescribed limitation periods. The court observed that mere negligence or lack of diligence does not constitute sufficient cause for setting aside abatement.
ESSENTIALS AND EXCEPTIONS
For a suit to abate under Order XXII, certain conditions must be met:
- Non-Substitution: Failure to substitute legal representatives within the prescribed time frame.
- Non-Survival of Right to Sue: If the cause of action does not survive the death of a party, the suit abates entirely.
Exceptions:
- Rule 4(4): The court may exempt the plaintiff from substituting legal representatives of a deceased defendant who had failed to file a written statement or, having filed it, failed to appear and contest the suit. In such cases, judgment may be pronounced notwithstanding the death.
- Rule 6: No abatement occurs if a party dies between the conclusion of the hearing and the pronouncement of the judgment. The judgment, once pronounced, has the same force as if the death had not occurred.
PROCEDURE FOR SETTING ASIDE ABATEMENT
To set aside an abatement, the following steps are undertaken:
- Application: The concerned party files an application under Order XXII Rule 9, explaining the reasons for the delay and the cause of abatement.
- Sufficient Cause: The applicant must demonstrate sufficient cause for the delay.
