The Death the Record Does Not Know: How Order XXII Distributes the Duty to Find Out

A civil suit is a proceeding between named persons. The plaint names them, the summons goes to them, the written statement answers for them, and the decree runs for or against them. The record is the Court's only account of who the parties are, and it is a document — it does not change when the world does. A party who has died remains on the record until somebody tells the Court otherwise.

Order XXII of the Code of Civil Procedure, 1908 is the machinery for telling the Court. It is short — twelve numbered rules and two lettered insertions, most of the additions made in 1976 — and it is usually discussed only at the point where it has already failed, which is when a suit or an appeal is found to have abated. Read forward instead of backward, it turns out to be an Order about information: who is required to know a fact, who is required to communicate it, and what follows from nobody doing either.

Abatement is not what death does

The Order opens by saying what death does not do. Rule 1: "The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives."

That sentence is worth reading slowly, because it removes death from the causal chain. What abates a suit is not the death of a party. It is the failure to do something after the death, within a period. Rule 3(2), for a plaintiff, and Rule 4(3), for a defendant, open in identical words: "Where within the time limited by law no application is made under sub-rule (1), the suit shall abate." They diverge only in what follows — "so far as the deceased plaintiff is concerned" in the one, "as against the deceased defendant" in the other. In both, the operative fact is the absence of an application, and the death enters only as the event from which the period is measured.

This matters because it locates the defect. A suit that has abated has not been terminated by an accident of mortality. It has been terminated by an omission, and an omission is something a party can in principle avoid. Whether the Order makes it practically avoidable is a separate question, and the Order addresses it in one rule only.

Two situations, and only one requires an application

Before the clock can matter, the Order divides the cases.

Rule 2 deals with the death of one of several plaintiffs or defendants where the right to sue survives to the surviving plaintiffs alone, or against the surviving defendants alone. There, "the Court shall cause an entry to the 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." No application is contemplated. The Court makes an entry; the suit continues; nothing turns on anyone's diligence.

Rules 3 and 4 deal with the death of a sole plaintiff or defendant, or of one of several where the right to sue does not survive to or against the survivors alone. There the Court acts "on an application made in that behalf", and shall then "cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit".

The division is between cases where the proceeding already contains everyone it needs and cases where it does not. Where the contest can continue between those still on the record, the Code asks nothing of the parties and directs the Court to record the fact. Where a place on the record has fallen empty and must be filled by somebody not yet before the Court, the Code requires an application — and it is only in that second class that any period runs at all.

That is a coherent allocation. The difficulty is in what the second class then depends on.

Ninety days from an event, not from knowledge

The "time limited by law" in Rules 3(2) and 4(3) is not in the Code. It is in the Schedule to the Limitation Act, 1963. Article 120 provides:

Under the Code of Civil Procedure, 1908 (5 of 1908), to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent, made a party. — Ninety days. — The date of death of the plaintiff, appellant, defendant or respondent, as the case may be.

One article covers all four positions, and the third column is the same for all of them: the date of death.

Not the date of knowledge. Not the date on which the fact reached the record, or reached the other side, or reached anybody at all. Limitation for the application runs from an event in the world which the Code nowhere requires anybody to report to the person who must act on it.

When the ninety days expire, the suit abates. The text says "shall abate", and the Order provides for no order of abatement, no finding, and no notice. The only order it contemplates in that direction is the order setting the abatement aside. Article 121 gives sixty days for that application, and its third column is "the date of abatement" — which is to say, a date computed from a date that was itself computed from an unreported event.

The two periods together give an outer window of a hundred and fifty days before any question of condonation arises, measured throughout from facts the party who forfeits the suit may never have been in a position to learn.

What the Code allows for ignorance

The Code is not unaware of this. The 1976 amendment, which inserted a great deal into this Order, inserted sub-rule (5) into Rule 4 for precisely the case where —

the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated

— and the plaintiff then applies under Section 5 of that Act for the delay to be condoned. In that case, "the Court shall, in considering the application under the said section 5 have due regard to the fact of such ignorance, if proved."

Three things about that provision repay attention.

It extends nothing. Rule 4(5) does not add a day to the ninety or the sixty. It directs the Court to weigh a particular fact in an application it would in any event have entertained, because Rule 9(3) already applies Section 5 to applications to set aside abatement. The sub-rule is an instruction about what shall count, not about how long anybody has.

It runs in one direction only. Rule 4(5) is about a plaintiff ignorant of a defendant's death. There is no corresponding sub-rule in Rule 3 for a defendant ignorant of a plaintiff's death, or for the legal representative of a deceased plaintiff who was never told that the deceased had a suit. Whatever the reason, the Code's express acknowledgment that ignorance is the ordinary condition covers half the field.

And it places the burden on the person who was ignorant — "if proved". What has to be established is that a party did not know something: a negative, about a state of mind, and the Court is directed to have regard to it only once it is established.

Rule 9(3) itself, in the official consolidated text, still applies "the provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877)". The Indian Limitation Act, 1908 replaced that Act, and the Limitation Act, 1963 replaced the 1908 Act in turn; the 1963 Act's own transitional provisions are written throughout against "the Indian Limitation Act, 1908 (9 of 1908)". The correction in Rule 9(3) has never been made by amendment. It is carried by a footnote directing the reader to the Limitation Act, 1963, sections 4 and 5. A reader who takes the sub-rule at its word is referred to a statute repealed more than a century ago, in a provision whose entire subject is what to do about a party who was not told something.

The one rule about finding out

Against all of that, the Order contains exactly one rule directed at the transmission of the fact. Rule 10A, also inserted in 1976:

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 thereupon 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.

The chain it sets up is worth reading in order. The duty falls on a pleader who comes to know of "the death of that party" — that is, of the party he himself appears for. It is therefore the deceased's own pleader who is addressed, and nobody else. He informs the Court. The Court informs the other side. Only at the end of that chain does the party who bears the ninety-day consequence come to know of the event from which the ninety days have been running since before the first link.

The deeming clause at the end says something about the rest. If the pleader's engagement survived his client's death of its own force, there would be nothing for the clause to do; the Code would not need to deem a subsisting contract into existence in order to impose a duty on a pleader who was already counsel in the case. The clause is there because at the moment the duty arises the pleader has, in the ordinary way, ceased to represent anybody in the proceeding. And the fiction is confined: the contract subsists "for this purpose", and for no other. The deceased's pleader is not restored to the conduct of the suit. He is kept on the record for exactly as long as it takes him to report a death.

So the Code's answer to the problem Article 120 creates is to make the opposite party's own pleader the channel of notice, and to deem a contract to subsist in order to make that possible. Rule 10A is the whole of the Order's machinery for informing the person on whom the period is running.

The rule immediately before

The contrast that makes the design legible is Rule 10, the rule immediately before:

In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

Structurally this is the same event as a death. The interest the proceeding is about has moved from the person on the record to somebody else, and the proceeding has to catch up with the movement. But the consequences the Code attaches are entirely different. There is no abatement, and nothing in Rule 10 terminates the suit if the application is made late. The Schedule to the Limitation Act contains no article for an application under Rule 10 — nothing between Articles 118 and 136 describes it, so it would fall to the residuary Article 137, which allows three years from when the right to apply accrues. The suit "may, by leave of the Court, be continued", and the Code attaches no forfeiture to the delay in asking.

The difference between the two rules is not in the nature of the interest or in the seriousness of the change. It is that in Rule 10 the person who was on the record is alive, is a party to the transaction that moved the interest, and can be expected to tell the pleader and the Court. No provision like Rule 10A is needed, because the source of the information is still in the proceeding. Where the fact can be expected to surface from within the case, the Code attaches no forfeiture to delay in reporting it. Where it may not surface at all, the Code attaches the loss of the claim to ninety days.

Where the Code lets the question go

Two further provisions show what the substitution requirement is actually for, because both dispense with it.

Rule 6 provides that notwithstanding anything in the foregoing rules, and whether the cause of action survives or not, there shall be no abatement by reason of the death of either party "between the conclusion of the hearing and the pronouncing of the judgment", and judgment may be pronounced notwithstanding the death, with the same force and effect as if pronounced before the death took place.

Rule 4(4) allows the Court, whenever it thinks fit, to exempt the plaintiff from substituting the legal representative of a defendant "who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing", and judgment may then be pronounced against that defendant notwithstanding his death.

The common element is that in each case the deceased's participation in the contest is over — in Rule 6 because the hearing has closed, in Rule 4(4) because it never opened. Substitution, on the Code's own theory, exists to secure that a live contest is conducted against somebody who can conduct it. Where there is nothing left to conduct, the Code allows judgment to be delivered against a deceased defendant and expressly gives it the same force and effect as if it had been pronounced before the death.

That also explains Rule 12: nothing in Rules 3, 4 and 8 applies to proceedings in execution of a decree or order. The contest there has already been decided.

The application need only be timely, not correct

One feature of the Order works in the opposite direction, and it matters because it lowers the standard of what has to be done within the ninety days.

Who the legal representative is need not be settled by the applicant. Rule 5 provides that where a question arises whether a person is or is not the legal representative of a deceased plaintiff or defendant, "such question shall be determined by the Court", and by a proviso added in 1976 an Appellate Court may direct a subordinate Court to try the question and return its findings. The definition the Court applies is a wide one: Section 2(11) defines "legal representative" as a person who in law represents the estate of a deceased person, and it "includes any person who intermeddles with the estate of the deceased", and, where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued.

Rule 4A covers the case where there is no legal representative at all. Where it appears to the Court that a party who has died during the pendency of the suit has none, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate, or appoint the Administrator-General, an officer of the Court or such other person as it thinks fit to represent it; and the judgment binds the estate to the same extent as it would have bound it had a personal representative been a party.

Taken together these mean the ninety-day application does not have to be right. It has to be made. An applicant who names the wrong heir, or an incomplete set of heirs, has brought the question before a Court that is empowered to determine it; an applicant who names nobody has allowed a period to expire.

What abatement bars, and what it does not

Rule 9(1) is what makes the whole apparatus consequential: "Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action." Without that sentence, abatement would be an inconvenience. With it, abatement is a final loss of the claim, achieved by the expiry of periods measured from unreported events.

The 1976 amendment added an Explanation, and its limits are precise: "Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order."

The bar is on the sword and not on the shield. A plaintiff whose suit abated cannot sue again on that cause of action. The same facts may still be pleaded by him in defence, if somebody else later sues him. That is not a softening of Rule 9(1); it is a statement of what Rule 9(1) was always about, which is the institution of proceedings and not the availability of facts.

Rule 11 carries the entire Order into appeals, with "plaintiff" read as appellant, "defendant" as respondent and "suit" as appeal. Article 120 already names appellants and respondents in its own terms. An appeal in which a respondent dies is therefore exposed to exactly the same ninety days, running from exactly the same unreported fact, at a stage where the parties are frequently further apart and further from each other's news than they were at trial.

What is actually within a party's control

Reading the Order this way produces a short conclusion. Of the facts on which a party's claim depends, the death of an opposite party is among the most consequential and the least observable. The Code responds by fixing a period that runs from the event rather than from its discovery, by providing for the discovery through a single rule that operates on the deceased's own pleader, and by making the failure final.

Two things follow for the conduct of a file, and neither of them is in Order XXII.

The first is the record of addresses. The Code's notice machinery — including the notice the Court is to give under Rule 10A once a death is reported — reaches a party at the address on the record, and a party whose address has gone stale is a party to whom the one notice the Order provides for will not arrive.

The second is that the ninety days are only as long as the interval at which a file is looked at. A period that runs from an event nobody is required to report cannot be managed by waiting to be told; it can only be managed by asking. Where a party is elderly, or ill, or has ceased to appear without explanation, the question of whether he is alive is a question about limitation, and it has a ninety-day answer.

The Order does not say any of that. It says a suit does not abate if the right to sue survives — and then constructs, out of an article in a Schedule and a deemed contract, a machinery in which the right to sue survives the death but not always the ignorance of it.