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Appealing Under Order 22 Rule 9 CPC: A Comprehensive Guide

In civil litigation, the death of a party during proceedings can lead to abatement under Order 22 of the Code of Civil Procedure, 1908 (CPC). This procedural hurdle often catches litigants off guard, potentially dismissing their cases without a merits hearing. But there's hope: Order 22 Rule 9 provides a mechanism to challenge and set aside such abatement. If you're wondering about the process for appealing under Order 22 Rule 9, this guide breaks it down based on key judicial precedents and statutory provisions.

Note: This article offers general information on legal procedures and is not a substitute for professional legal advice. Consult a qualified lawyer for your specific case, as outcomes depend on individual facts and circumstances.

Understanding Abatement Under Order 22 CPC

Abatement occurs when a party dies, and their legal representatives (LRs) are not substituted within the prescribed time. Order 22 governs this:

• Rule 3: Applies to plaintiff’s death in a suit; LRs must apply within 90 days.


• Rule 4: For defendant’s death.


• Rule 11: Extends rules to appeals.

Failure leads to abatement, meaning the suit or appeal dies automatically. However, Order 22 Rule 9 allows courts to investigate and set aside abatement if good cause is shown. Rule 9(2) specifically permits an application to set aside abatement, and Rule 9(3) applies Section 5 of the Limitation Act for condonation of delay. Pepsi Foods VS Special Judicial Magistrate - 1997 9 Supreme 279

Courts emphasize that Order 22 provisions are procedural, not penal. They aim to ensure justice rather than defeat rights on technicalities. SOBHARAM S/o ASHARAM SAHU VS CHOL SINGH S/o DILLI SINGH - 2022 Supreme(MP) 567

Key Triggers for Abatement

• Death of a sole plaintiff/appellant without substitution. Shambhatta M VS Mena Ramakrishna Bhatta - 1971 Supreme(Ker) 270


• Death of one of multiple parties with joint/indivisible interests, abating the entire proceeding. Suresh Chandra (Deceased) through LRs. VS Parasram - 2025 Supreme(SC) 1090 PYARELAL VS MODI SIKHARCHAND - 1956 Supreme(MP) 53


• Non-compliance in appeals under Order 41 Rule 4. Brij Mohan Lal Murli Dhar VS Raj Kishore - 1959 Supreme(P&H) 41

The Process for Appealing Under Order 22 Rule 9

The appeal here refers to filing an application under Order 22 Rule 9(2) to set aside abatement, often treated as a miscellaneous application in the same court. Here's the step-by-step process:

1. File Application Promptly

• Move under Order 22 Rule 9(2) read with Section 151 CPC (inherent powers) and Section 5 Limitation Act if delayed.


• Time limit: No strict bar initially, but delay needs condonation. Courts liberally allow if sufficient cause (e.g., lack of knowledge of death). Champa Bai S/o Salikram VS Bholaram S/o Salikram - 2023 Supreme(Chh) 541


• Who can file? LRs of the deceased, or affected parties. Heirs can even challenge ex parte decrees post-death. Sri Satish Sharma vs Sri Tapan Kumar Pal & Anr. - 2025 Supreme(Online)(Cal) 2766

2. Gather Supporting Evidence

• Affidavit explaining delay (e.g., ignorance of death, procedural oversight).


• Death certificate.


• Proof of heirship (succession certificate, family tree).


• Show no prejudice to opposite party.

Example: In one case, the court held applications under Order 22 Rule 3 and 9 were allowable despite prior rejections, as provisions ensure continuation and culmination into effective adjudication. SOBHARAM S/o ASHARAM SAHU VS CHOL SINGH S/o DILLI SINGH - 2022 Supreme(MP) 567

3. Court Hearing and Inquiry

• Court conducts a summary inquiry under Rule 9(1) to check abatement facts.


• If abated, Rule 9(2) application follows. Prove abatement was due to mistake or lack of knowledge.


• Nomenclature irrelevant; courts treat petitions under Article 227 or Section 482 CrPC if needed. Pepsi Foods VS Special Judicial Magistrate - 1997 9 Supreme 279

4. Higher Court Remedies if Rejected

• Revision under Section 115 CPC if procedural error.


• Writ under Article 227 Constitution for supervisory jurisdiction. Sri Satish Sharma vs Sri Tapan Kumar Pal & Anr. - 2025 Supreme(Online)(Cal) 2766


• Avoid direct appeals; exhaust trial remedies first.

In a notable ruling, the Supreme Court set aside a dismissal for non-opportunity to file under Rule 9, remanding for fresh consideration. Roshanlal Tiwari (died) thr. L. Rs. Rajkumar Tiwari S/o. Late Shri Roshanlal Tiwari VS Pannalal Tiwari, S/o. Late Ramkishore Bramhin - 2023 Supreme(MP) 983

Judicial Insights on Order 22 Rule 9 Applications

Courts interpret these rules to advance justice:

• Procedural Flexibility: Provisions of Order 22 are not penal... meant to ensure continuation... not foreclose adjudication on merits. SOBHARAM S/o ASHARAM SAHU VS CHOL SINGH S/o DILLI SINGH - 2022 Supreme(MP) 567 Champa Bai S/o Salikram VS Bholaram S/o Salikram - 2023 Supreme(Chh) 541


• Condonation of Delay: Section 5 Limitation Act applies explicitly via Rule 9(3). Sufficient cause includes date of knowledge. Saran Dass VS Chinta Mani - 2011 Supreme(HP) 2379


• Joint Decrees and Abatement: Death of one appellant in joint interest cases abates entire appeal; Order 41 Rule 4 doesn't override. Suresh Chandra (Deceased) through LRs. VS Parasram - 2025 Supreme(SC) 1090 PADMARAM VS SURJA - 1959 Supreme(Raj) 249


• Non-Appealing Parties: Relief possible under Order 41 Rule 33, but only if all appellants' LRs substituted. Brij Mohan Lal Murli Dhar VS Raj Kishore - 1959 Supreme(P&H) 41

In another instance, legal heirs were substituted after setting aside abatement, stressing no miscarriage of justice. Saran Dass VS Chinta Mani - 2011 Supreme(HP) 2379

Common Pitfalls to Avoid

• Delay Without Explanation: Courts dismiss if no bona fides. Vijay Kumar VS Tara Chand - 2003 Supreme(P&H) 309


• Ignoring Joint Interests: Abatement spreads to all if indivisible. Shambhatta M VS Mena Ramakrishna Bhatta - 1971 Supreme(Ker) 270


• Wrong Forum: File in the court where abatement occurred; escalate via revision/writ.


• No Substitution Proof: Always attach heirship documents.

Interplay with Other Provisions

• Order 41 Rule 4: Allows appeals by some parties benefiting others, but abatement rules prevail. SANTOSH KUMAR MONDAL VS NANDALAL CHAKRAPANI - 1962 Supreme(Cal) 196


• Article 227: High Courts prevent abuse, quashing improper dismissals. Pepsi Foods VS Special Judicial Magistrate - 1997 9 Supreme 279


• Limitation: 60 days for Rule 9 apps, extendable.

Key Takeaways

• Act Swiftly: File Order 22 Rule 9(2) application with condonation if needed to revive your case.


• Document Everything: Knowledge of death starts the clock; prove ignorance for relief.


• Seek Justice, Not Technical Wins: Courts favor merits over procedure. Champa Bai S/o Salikram VS Bholaram S/o Salikram - 2023 Supreme(Chh) 541


• Professional Help: Complex heirship or joint claims require expert guidance.

Understanding the process for appealing under Order 22 Rule 9 can save your litigation from premature end. While abatement protects opposite parties from delays, Rule 9 balances this with fairness. Stay proactive, and remember: every case turns on its facts.

Disclaimer: Legal outcomes vary by jurisdiction and specifics. This is informational only—consult an advocate for tailored advice.