Order 22 and 23 CPC: Death, Marriage, Insolvency of Parties, Withdrawal and Compromise of Suits
Civil litigation is often lengthy, and during the pendency of a suit, circumstances like death, marriage, insolvency, or settlement may arise. The Code of Civil Procedure, 1908 (CPC) deals with such contingencies under Order 22 (Death, Marriage and Insolvency of Parties) and Order 23 (Withdrawal and Compromise of Suits). These provisions ensure that justice is not defeated due to changes in the status of parties or technical defects.
Order 22 CPC: Death, Marriage and Insolvency of Parties
Order 22 governs situations where one of the parties to a suit or appeal dies, marries, or becomes insolvent. It ensures continuity of proceedings, provided the right to sue survives.
1. Death of a Party (Rules 1–6, 9, 10A)
• Rule 1: A suit does not abate if the right to sue survives.
• Time Limits:
• Substitution of Legal Representatives (LRs) → within 90 days (Article 120, Limitation Act).
• Setting aside abatement → within 60 days (Article 121).
• Delay condonation possible under Section 5, Limitation Act.
Cases where the right to sue survives:
• Possession suits by landlord against tenant.
• Specific performance of a contract.
• Partition suits.
• Pre-emption suits.
Cases where the right to sue does not survive:
• Defamation.
• Malicious prosecution.
• Assault or personal injury.
• Breach of promise to marry.
• Contracts involving personal skill.
Key Principle:
👉 Actio personalis moritur cum persona – A personal right of action dies with the person.
Important Rulings:
• M. Veerappa v. Evelyn Sequeira (1988 SC): If based on tort → suit abates; if partly contract → contract part survives.
• Melepurath Sankunni v. Thekittil Geopalankutty (1986 SC): Defamation appeal abates if plaintiff dies, but if decree already passed, LRs can continue.
2. Marriage of Female Party (Rule 7)
Marriage of a woman does not abate the suit. The decree binds her and, if applicable, her husband (with court’s permission).
3. Insolvency of Plaintiff (Rule 8)
If a plaintiff becomes insolvent:
• The assignee/receiver may continue the suit for creditors’ benefit.
• If they refuse, the defendant may apply for dismissal.
4. Abatement (Rule 9)
If substitution is not made within time → suit abates.
• No fresh suit on the same cause of action is allowed.
• Remedy: Apply for setting aside abatement by showing sufficient cause.
5. Determination of Legal Representative (Rule 5)
The court decides who qualifies as a legal representative through summary inquiry.
6. Duty of Pleader (Rule 10A)
If a pleader learns that their client has died, they must inform the court, ensuring smooth substitution.
7. Applicability of Order 22
• ✔ Applies to suits and appeals.
• ❌ Does not apply to execution proceedings, writs, or revisions.
Case Law:
• Mithailal Dalsangar Singh v. Annabai Devram Kini (2003 SC): Abatement automatic after 90 days; revival possible on sufficient cause.
Order 23 CPC: Withdrawal and Compromise of Suits
Order 23 deals with situations where the plaintiff either wishes to withdraw a suit or where parties decide to compromise.
1. Withdrawal of Suit (Rule 1–2)
(a) Without Court’s Permission
• Plaintiff may abandon suit/claim.
• Cannot file a fresh suit on the same subject matter.
(b) With Court’s Permission
• Allowed when:
1. Formal defect exists (e.g., wrong jurisdiction, mis-joinder, valuation error).
2. Sufficient ground exists (e.g., premature filing, infructuous suit).
👉 Effect: Plaintiff may file a fresh suit on the same subject.
Important Point: In representative suits or where plaintiff is a minor, court’s permission is mandatory.
2. Transposition of Defendant as Plaintiff (Rule 1A)
If the plaintiff withdraws, a defendant may seek to be transposed as plaintiff to continue the suit.
3. Fresh Suit and Limitation (Rule 2)
Even if permission is granted, limitation law applies as if the first suit was never filed.
4. Compromise of Suit (Rule 3)
Essentials of a Compromise Decree:
• Lawful agreement/compromise.
• Must be in writing & signed by parties.
• Court records it and passes a compromise decree.
Judicial Duty: Court must ensure the compromise is lawful and valid.
Special Cases:
• In representative suits, compromise requires court’s leave [Rule 3B].
• Compromise by pleader valid due to implied authority.
Case Law:
• Banwari Lal v. Chando Devi (1993 SC): Court can recall compromise obtained by fraud or misrepresentation.
• Shankar v. Balkrishna (1954 SC): Compromise decree acts as estoppel.
5. Appeal Against Compromise Decree
• Section 96(3) CPC: No appeal lies against a consent decree.
• Order 23 Rule 3A: No separate suit to challenge compromise.
• Remedy: Challenge before trial court under Proviso to Rule 3, then appeal under Section 96(1).
Recent Case:
• Sakina Sultanali v. Shia Imami Ismaili Momin Jamat Samaj (2025 SC): Compromise validity must first be challenged before trial court.
Key Differences Between Order 22 and Order 23
Order 22 CPC primarily deals with situations where there is a change in the status of parties during the pendency of a suit, such as death, marriage, or insolvency. The focus under this order is on whether the right to sue survives. If the right to sue is of a personal nature, the suit abates automatically with the death of a party, but if it is transferable, the suit continues against or by the legal representatives. Thus, Order 22 is concerned with the continuity of the proceedings when a party is no longer able to represent themselves due to such changes.
On the other hand, Order 23 CPC deals with the withdrawal and compromise of suits. Here, the focus is not on the survival of a right but on the intention of the plaintiff or parties. A plaintiff may withdraw a suit either with or without the court’s permission. If withdrawn without permission, a fresh suit on the same subject matter is barred. However, with the court’s permission, a plaintiff may withdraw and institute a new suit, particularly in cases of formal defects or sufficient grounds. Further, Order 23 also governs compromise decrees, where disputes are settled mutually, and the court records such settlement as a decree.
In essence, while Order 22 ensures that litigation does not collapse due to unavoidable events like death or insolvency, Order 23 empowers parties to either abandon litigation or resolve disputes through compromise. Together, both provisions maintain a balance between the procedural continuity of suits and the autonomy of parties to settle or withdraw claims.
Conclusion
Order 22 CPC ensures continuity of litigation when a party dies, marries, or becomes insolvent, provided the right to sue survives. On the other hand, Order 23 CPC gives flexibility to withdraw or compromise suits, preventing unnecessary litigation. Together, they balance fairness, justice, and judicial efficiency in civil proceedings.
For judiciary aspirants and legal practitioners, mastering these provisions is crucial, as they frequently appear in CPC exam questions, case law analysis, and practical litigation scenarios.
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