Order XXII Rule 4 CPC | Supreme Court Explains Correct Procedure To File Applications To Substitute Legal Heirs, Set Aside Abatement & Condone Delay
The Supreme Court has issued a clarification regarding the substitution of legal heirs in ongoing litigation, addressing a frequent procedural misstep by lawyers. The Court emphasized the crucial distinction between abatement of a suit or appeal and the process of setting aside that abatement, particularly in cases where substitution applications are filed beyond the initial 90-day...
The Supreme Court has issued a clarification regarding the substitution of legal heirs in ongoing litigation, addressing a frequent procedural misstep by lawyers. The Court emphasized the crucial distinction between abatement of a suit or appeal and the process of setting aside that abatement, particularly in cases where substitution applications are filed beyond the initial 90-day limitation period.
Order XXII of the Code of Civil Procedure (CPC) governs the process of replacing deceased parties with their legal representatives. While a suit or appeal doesn't automatically abate upon a party's death if the "right to sue" survives, it does abate if a substitution application isn't filed within 90 days of the death, as per Article 120 of the Limitation Act, 1963. The limitation period to set aside abatement is 60 days from the date of abatement as per Article 121 of the Limitation Act.
The Court observed that lawyers often commit mistakes while reviving a case after 90 days and mistakenly file an application for condonation of delay along with the substitution application instead of filing the delay condonation application with the application for setting aside the abatement.
“From our limited experience on the bench of this Court, we have found it somewhat of a frequent occurrence that after abatement of the suit and after the 150th day of death, an application is filed for condonation of delay in filing the application for substitution but not an application seeking condonation of delay in filing the application for setting aside the abatement.”, the court observed.
The Court clarified the correct procedure for seeking the setting aside of abatement beyond the 90 days.
Firstly, if the lawyer fails to file a substitution application within 90 days of the death, then the correct procedure is to first file an application to set aside the abatement within 60 days of the abatement (i.e., within 90+60=150 days of the death), as per Article 121 of the Limitation Act.
"Thus, the total time-frame for filing an application for substitution and for setting aside abatement, as outlined in Articles 120 and 121 of the Limitation Act, is 150 (90 + 60) days. The question of condonation of delay, through an application under Section 5 of the Limitation Act, arises only after this period and not on the 91st day when the suit/appeal abates," the Court explained.
Moreover, if the lawyer misses both the opportunity, and want to set aside abatement after 150 days then he can file the requisite applications for substitution and setting aside the abatement with an accompanying application for condonation of delay in filing the latter application, i.e., the application for setting aside the abatement.
“The proper sequence to be followed, therefore, is an application for substitution within 90 days of death and if not filed, to file an application for setting aside the abatement within 60 days and if that too is not filed, to file the requisite applications for substitution and setting aside the abatement with an accompanying application for condonation of delay in filing the latter application, i.e., the application for setting aside the abatement. Once the court is satisfied that sufficient cause prevented the plaintiff/appellant from applying for setting aside the abatement within the period of limitation and orders accordingly, comes the question of setting the abatement. That happens as a matter of course and following the order for substitution of the deceased defendant/respondent, the suit/appeal regains its earlier position and would proceed for a trial/hearing on merits. Be that as it may.”, the court clarified.
Background
The aforesaid clarification came by a bench of Justices Dipankar Datta and Prashant Kumar Mishra while deciding an appeal where the litigant's legal heirs, who failed to file a substitution application within 90 days of the death of the litigant, wanted to set aside the abatement of the second appeal even after the further 60 days limitation period was lapsed. For doing so, he filed a delay condonation application with the substitution application, instead of filing the same with an application seeking setting aside the abatement of the appeal.
The Court clarified that the delay condonation application needs to be filed with the application seeking to set aside the abatement, not the substitution application.
Also from the judgment - Order XXII Rule 4 CPC | No Separate Prayer To Set Aside Abatement Needed If Application To Substitute Legal Heirs Is Filed: Supreme Court
Case Title: OM PRAKASH GUPTA ALIAS LALLOOWA (NOW DECEASED) & ORS. VERSUS SATISH CHANDRA (NOW DECEASED) & Connected Matter
Citation : 2025 LiveLaw (SC) 194
