📘 CIVIL PROCEDURE CODE (CPC) – ORDER XXII & XXIII

Preparation for RJS, DJS, PCS (J) and other Judicial Service Exams

❓ Question

What is the ‘time limited by law’ referred in Rule 4(3)?

✅ Answer

• The law referred is the Limitation Act 1963 and the time limited by that law is ninety days as seen from item 120 of Schedule to the Limitation Act.

📖 CIVIL PROCEDURE CODE EXPLAINED

The Civil Procedure Code forms the bedrock of any and every Judicial Service exam in the country.
Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam.

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on all important aspects of this vital part of their syllabus:

⚖️ ORDER XXII – DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

Effect of party’s death – Rule 1

• Death of a plaintiff or defendant
• shall not cause the suit to abate
• if the right to sue survives

Procedure in case of death of plaintiff – Rule 3(1)

• Where a plaintiff dies
• Court
• shall cause legal representative of the deceased plaintiff to be made a party
• on an application made in that behalf

Abatement of suit – Rule 3(2)

• Where no application is made within the time limited by law
• suit shall abate
• so far as the deceased plaintiff is concerned

On application of defendant:

• Court may award to him
• costs which he may have incurred in defending the suit
• to be recovered from estate of the deceased plaintiff

Procedure in case of death of defendant – Rule 4(1)

• Where a defendant dies:
• Court shall cause
• legal representative of the deceased defendant to be made a party
• on an application made in that behalf

Rule 4(2)

• Any person so made a party
• may make any defence appropriate to his character as legal representative

Abatement of suit – Rule 4(3)

• Where no application is made within the time limited by law:
• suit shall abate
• as against the deceased defendant

📝 Note by DLA

Question

What is the ‘time limited by law’ referred in Rule 4(3)?

Answer

• The law referred is the Limitation Act 1963 and the time limited by that law is ninety days as seen from item 120 of Schedule to the Limitation Act.

📅 Limitation Act Schedule

• Description: Under CPC: to have legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent made a party
• Period of limitation: Ninety days
• Time from which period begins to run: The date of death

No need to substitute legal representatives – Rule 4(4)

• Court may exempt the plaintiff
• from the necessity of substituting legal representatives of a defendant
• who
• has failed to file a written statement or
• having filed it, has failed to appear and contest the suit at the hearing

Setting aside of abatement – Rule 4(5)

• Where
• the plaintiff was ignorant of death of a defendant and
• could not, for that reason, apply for substitution of his legal representative within the period in the Limitation Act and
• the suit has, in consequence, abated and…
• the plaintiff applies
• for setting aside the abatement after expiry of the limitation period and
• also for admission of that application u/s 5 of the Limitation Act on the ground that he had, by reason of such ignorance, sufficient cause…
• Court shall
• have due regard to the fact of such ignorance in considering his application under the said section 5

📝 Note by DLA

Question

What is the ‘time limited by law’ referred in Rule 4(3)?

Answer

• The law referred is the Limitation Act 1963 and the time limited by that law is sixty days as seen from item 121 of Schedule to the Limitation Act.

📅 Limitation Act Schedule

• Description: Under CPC: for an order to set aside an abatement
• Period of limitation: Sixty days
• Time from which period begins to run: The date of abatement

Determination of legal representative – Rule 5

• Where a question arises
• whether any person is or is not the legal representative of a deceased plaintiff or defendant
• such question shall be determined by the Court

No abatement by reason of death after hearing – Rule 6

• There shall be no abatement
• by reason of death of either party
• between conclusion of hearing and pronouncing of judgment
• In such case: Judgment
• may be pronounced notwithstanding the death and
• shall have the same force and effect as if it had been pronounced before the death

⚖️ ORDER XXIII – WITHDRAWAL AND ADJUSTMENT OF SUITS

Abandonment of suit or part of claim – Rule 1(1)

• At any time after institution of a suit:
• plaintiff
• may abandon his suit or abandon a part of his claim
• as against all or any of the defendants

Withdrawal of suit with liberty to institute a fresh suit – Rule 1(3)

• Where Court is satisfied
• that a suit must fail by reason of some formal defect or
• that there are sufficient grounds for allowing the plaintiff to institute a fresh suit
• it may grant plaintiff permission
• on such terms as it thinks fit
• to withdraw from such suit or such part of claim
• with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of claim

Prepared by the academic team at Delhi Law Academy, Jaipur
For Judicial Services Exam Preparation

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❓ Frequently Asked Questions (CPC Order XXII & XXIII)