प्रतिवादी की मृत्यु हो जाए तो?Order 22 Rule 4 C.P.C.,How to take on record Legal Heirs of Defandant

What is Order 22Rule 4 C.P.C., What happen if the Defendant Dies during the Pendency of the Suit.

After The Death of Defendant, How to file application before the court. for bringing Legal Heirs on record under the provisions of Order 22 Rule 4 of the Code of Civil Procedure:-
Procedure in case of death of one of several defendants or of sole defendant.
(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub rule (1), the suit shall abate as against the deceased defendant.
(4) The Court wherever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has filed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
(5) Where –
(a) 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
(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,
The Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.
Point No.2.:-How to draft application under Order 22 rule 4 C.P.C.
1. Name of the court
2. Case No. of the suit and Title of the suite
3. Heading Application under order 22 Rule 4 CPC for bringing legal heirs of the deceased Defendant on record
4. Date of Death of the Defendant
5. Relationship with the Defendant
6. right to sue survive
7. The applicant may be impleded as the Plaintiff in the case title of the Suit
8. File the Application within Limitation of 90 days.
9. Relief: - The application may be allowed and the legal Heirs may kindly be taken on record.
10. name & address of the applicant
11. Affidavit
Point No.3:- Documents to be Filed along with the application
1. Proof of Legal Heir/ Rashan Card Etc,
2. Death Certificate of Defendant
 
Point No.4. What is the period of Limitation for taking Legal Heirs of the Defendants on Record

As per Article 120 of the Limitation Act, the period of limitation is 90 days

5. Point No.5:- What happen, if the legal heir of Defendants could not file the application within 90 days.
1. Suit Abated automatically without any formal order of the court.
2. File the Application at the earliest.
3. File Application of Order 22 Rule 4 C.P.C. along with the application for Condonation of Delay under section 5 of the Limitation Act.

Point No. 6:- Does it Apply in appeal, when the Respondent Dies during the pendency of the appeal:-
IN THE SUPREME COURT OF INDIA (Decided On: 15.11.1994)
Appellants: Bibijan and Ors.
Vs.
Respondent: Murlidhar and Ors.

Thus at the appellate state also the legal representatives of the deceased respective appellants and the respondents should be substituted as the L.Rs. of the respective appellants/respondents. After the expiry of 90 days, the appeal stands abated unless the appeal survives against the surviving appellants.
At appellate stage the same provisions as in suit shall apply.


Namish Nigotia
Advocate (Rajasthan High Court)
Jaipur
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