Party died mid-suit? The suit goes on.

Quick quiz. No application.

Guess first, then swipe for the answer.

• A. The suit abates
• B. The court may proceed
• C. Dismissed for default

Answer: B. Rule 3(2).

Order XXII, CPC.

“Where within the time allowed by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit and any order made or judgment pronounced in such suit shall notwithstanding the death of such plaintiff have the same force and effect as if it had been made or pronounced before the death took place.”

Code of Civil Procedure, 1908 · Order XXII Rule 3(2), Procedure in case of death of plaintiff

The basics.

Order XXII and the Limitation Act.

• No abatementDeath does not cause the suit to abate if the right to sue survives (R.1).
• Bring them inOn application, the legal representative is made a party (R.3(1)).
• Ninety daysFrom the date of death, for plaintiff or defendant (Arts. 176 and 177).

Name them early.

Order VII R.26 and Order VIII R.13.

• In the plaintA statement of the plaintiff's legal representatives and a nominee.
• In the replyThe same from the defendant, with his written statement.
• The nomineeTells the court of the death, gives the names and applies.

When a party dies.

Three steps, in this order.

• DeathThe right to sue survives (R.1).
• IntimationBy the nominee, or an application (R.3, R.4).
• On recordThe legal representatives join and the suit proceeds.

Decided without them?

Order XXII R.9.

• ApplyA legal representative can apply to set aside an order or judgment made in his absence (R.9(2)).
• Sufficient causeProve he was prevented by sufficient cause: the court sets it aside.
• Sixty daysFrom the order or judgment (Art. 171); s.5 Limitation Act applies (R.9(3)).

Myth or fact?

Death after arguments.

• Myth: A party dies after arguments, before judgment. The case is over.
• Fact: No abatement takes place by death between the end of the hearing and the judgment (PLD 1988 SC 259).

Other events.

Order XXII R.7 and R.8.

• MarriageThe marriage of a female party does not cause the suit to abate (R.7).
• InsolvencyThe plaintiff's insolvency does not abate it, unless the receiver declines to continue or give security (R.8).

Party passed away?

Ask FAI in your own words. It answers with the exact rule and the judgments behind it.

• The defendant died two years ago and the decree was passed against him. Can his heirs set it aside?
• Draft an application under Order XXII Rule 3 CPC.

Example questions

Sources

• Code of Civil Procedure, 1908 · Order XXII Rule 3(2)
  Procedure in case of death of plaintiff Pakistan Code