Order 22

Order 22- Death, Marriage and Insolvency of Parties

Abatement of Suit

• Death of a party (Rule 1 to 6, 10-A)

• Marriage of a party (Rule 7
• Insolvency of a party ( Rule 8)
• Assignment of interest (Rule 10)

Order 22 deals with the creation, assignment or devolution of interest during the pendency of
suits. It also applies to appeals but not to execution proceedings. The provisions of order 22
are exhaustive.

Right to Sue:
Jayaram Reddy vs. Revenue Division Officer, (1979) 3 SCC 578
When a party to a suit dies, the first question to be decided is whether the right to sue
survives or not. If it does not, there is an end to the suit. If it does, the suit will not abate. It
can be continued by or against the heir and legal representatives of the deceased party.

Girijanandini Devi vs. Bijendra Narain, AIR 1967 SC 1124

The general rule is that all the rights of action and all demands whatsoever existing in favor
of or against a person at the time of his death, survive to or against his legal representatives.
But in cases of personal actions, that is actions where the relief sort is personal to the
deceased or the rights intimately connected with the individuality of the deceased, the right to
sue will not survive to or against his representatives. In these cases, the maxim action
personalis maritur cum persona (a personal action dies with the person) applies.

State of Himachal Pradesh, v/s Smt. Annapurna Pathak, AIR 2007 HP 88

In this case, the Himachal Pradesh High Court held that out of the numerous legal heirs
where only a few of them are impleaded as legal representatives, it does not mean that they
alone are entitled to inherit the entire subject matter of the litigation. In the proceedings under
order 22, the question of inheritance is not decided and it is only a question of representation

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 Order 22

of the estate of the deceased, which is decided. Therefore, the person who represents the
state, acts on behalf of the entire body of the people who inherit the estate. His impleadment
does not amount to a decision that he is the sole owner of the estate of the deceased.

Balwinder Kaur versus Gurmukh Singh AIR, 2007, Punjab and Haryana, 74
A lady's marriage was declared a nullity on the grounds of having performed second marriage
during the subsistence of her first marriage. The lady died during the pendency of her appeal.
It was held by the High Court that the appeal could not and abate and her daughter would be
legally entitled to pursue the appeal. It was observed that in case the decree of nullity of
marriage remains intact, the legal right of the daughter to inherit the ancestral property of her
parents would be affected and her social status would also be at stake. Thus, the daughter
being an affected party from the decree, would be entitled to pursue the appeal filed by her
mother.

Illustrations:
• An action to recover damages for breach of contract of marriage abates on the death
of the plaintiff.

• The right of an unmarried Hindu daughter to claim the property left by her father to
the exclusion of her married sister is not a personal right. If a suit is brought to
establish such a right, and the plaintiff dies pending the suit, the suit does not abate.

• A suit by an idol is conducted by the Shebait as representing the idol and does not
abate on the death of the shebait.

• A sues B to establish his right to the office of mahant. A dies before the decree. The
suit abates, for the right claimed is a personal right to an office.

• A files a suit as the agent of B under a general power of attorney to recover possession
of properties from C. A dies. The suit does not abate, as the real plaintiff in the suit is
the principal B and not the agent A.

• A sues B for damages for malicious arrest. Pending the suit, B dies. The suit abates.

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 Order 22

• In a suit for pre-emption, if the pre-emptor dies, the right to sue does not survive to
his heirs and the suit abates.

• A, the religious had of a community, passed an order excommunicating B. B filed a

suit for a declaration that the order was invalid and for consequential reliefs. Pending
the action. B died. It was held by the Supreme Court that the maxim action personalis
moritur cum persona applied and the suit abated.

• A’s suit for a declaration that the plaintiff’s retirement was illegal was dismissed. He
appealed but died during the appeal. The Department of Land Reforms made an
application for bringing them on the record and for continuance of the appeal. It was
held that the relief sought in the suit was personal to the deceased. The cause of action
did not survive, and the appeal abated.

Medical Reimbursement – Nurani Jamal vs. Srinivas Rao, AIR 1994 AP 6

The right to sue for recovery of damages for personal injury does not die on the death of the
injured person, where there is a loss of the estate and reimbursement of medical expenses is
sought by the legal representative.

Suit under Order I rule 8

If the plaintiff or one of the plaintiffs appointed to conduct the suit dies, any other person
interested may apply to carry on the suit. The suit does not abate.

Death of either party pending appeal

1. A sues B for damages for personal injury and obtains a decree for Rs. 2000. B appeals
from the decree on the ground that he is not liable. A files cross objection claiming
enhanced damages. Pending the appeal, B dies. B’s legal representative may carry on
the appeal to get rid of the decree. But A’s cross objection claiming more damages on
the original right of suit gets abated.
2. A sues B for damages for defamation, but the suit is dismissed. A appeals from the
decree. A dies pending the appeal. A’s representative is not entitled to prosecute the
appeal. The reason is that the decree in the original suit being against A, what is
sought to be enforced in the appeal is A’s right to sue. But the right to sue in a suit for
defamation does not survive to the legal representative; hence the appeal abates.

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 Order 22

Similarly, if B dies pending the appeal, A is not entitled to continue the appeal against
B’s representative, not even if A’s suit was dismissed with costs.

The suit shall abate so far as the deceased plaintiff is concerned.

• Where one of two or more plaintiff dies and the right to sue survives to the surviving
plaintiff or plaintiff alone, the surviving plaintiff or plaintiffs may proceed with the
suit.
• Where one of the two or more plaintiffs dies and the right to sue does not survive to
the surviving plaintiff alone, the legal representative of the deceased plaintiff ought to
be made a party to the suit.

Insolvency of Defendant – Joinder of Official Assignee

• A sues B for recovery of possession of certain immovable property. The defence is
that B is the full owner of the property. Pending the suit, B is adjudged insolvent
and his estate vests in the Official Assignee. This Official Assignee is entitled to be
substituted as a party defendant under rule 10 of Order 22. The reason is that the
order of adjudication operates as a statutory transfer of the interest of the insolvent
in the subject matter of the suit to the Official Assignee.
• A mortgages his property to B. B sues A for a sale of the mortgaged property.
Pending the suit, A is adjudged insolvent. The Official Assignee or Receiver is a
necessary party to the suit.

Cases of Assignment, Creation and Devolution of Interest.

Rule 8 deal with certain cases of assignment, creation and devolution of interest. Rule 8 deals
with the case of assignment on the insolvency of a plaintiff, rule 7 deals with the case of the
creation of an interest in a husband on marriage, and rule 2,3, and 4 with the case of
devolution of interest on the death of a party to a suit. Rule 10 provides for cases of
assignment, creation and devolution of interest other than those mentioned above.

Interest

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 Order 22

The word interest means an interest in the property, the subject-matter of the suit. The interest
referred to in this rule is the interest of the person who was a party to the suit. Interest
includes any transferable right to sue and not merely an interest in tangible property and
therefore an assignee pendente lite of the right to obtain specific performance of an
agreement to convey immovable property can be impleaded under this rule.

Illustration.
• A sues B for recovery of possession of certain property. Pending the suit, A sells his
interest in the property to C. C may apply under this rule to have his name substituted
as plaintiff in A’s place.

• A sues the firm of BC to recover Rs. 5000/- Pending the suit the firm of BC transfers
all its assets and liabilities to the firm of XY. Thereupon A applies to the court under
rule 10 to have the firm of XY joined as a party defendant. The firm of XY should not
be joined as a party, for the assignment cannot be said in any sense to be an
assignment of the defendant’s interest in the subject matter of the suit.

Here the subject matter of the suit the amount claimed by A, namely, Rs 5000. The
reason why the application to make the transfer a party is that interest in Order 22 rule
10 is interest in the subject-matter of the suit. In the present case, the subject-matter is
the claim for Rs. 5000 and no the defendant’s assets. Hence rule 10 is not attracted.

Insolvency of Defendant – Joinder of Official Assignee

• A sues B for recovery of possession of certain immovable property. The defence is
that B is the full owner of the property. Pending the suit, B is adjudged insolvent and
his estate vests in the Official Assignee. This Official Assignee is entitle to be
substituted as party defendant under this rule. The reason is that the order of
adjudication operates as statutory transfer of the interest of the insolvent in the
subject-matter of the suit to the Official Assignee.
• A mortgages his property to B. B sues A for a sale of the mortgaged property.
Pending the suit A is adjudged insolvent. The Official Assignee or Receiver is a
necessary party to the suit.

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 Order 22

Dhurandhar Prasad Singh vs. Jai Prakash University (2001) 6 SCC 534
It was held that the trial of a suit cannot be brought to an end merely because the interest of a
party in the subject-matter of the suit has developed upon another during the pendency of the
suit but that suit may be continued against the person acquiring the interest with the leave of
the court.

Illustration:
In a suit by A against B to recover certain immovable property a decree is passed for A. B
appeals from the decree. Pending the appeal, A sells the property to C. C may be made a party
to the appeal.

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