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Understanding Order 22 Rule 9 CPC and Section 5 of Limitation Act: 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 (CPC), potentially derailing the entire suit or appeal. Order 22 Rule 9 provides a mechanism to set aside abatement, often paired with Section 5 of the Limitation Act, 1963, for condoning delays. This blog post delves into key judicial interpretations, drawing from landmark cases to explain when courts may grant relief. Whether you're a litigant facing abatement or a legal professional, understanding these provisions is crucial for preserving rights.

Note: This is general information based on case law and not specific legal advice. Consult a qualified lawyer for your situation, as outcomes depend on facts.

What is Abatement under Order 22 CPC?

Order 22 CPC governs the abatement of suits or appeals due to the death of a party. Key rules include:

• Rule 4: Substitution of legal representatives when a plaintiff dies.


• Rule 9: Procedure to set aside abatement if an application for substitution is rejected or not filed timely.

Abatement occurs automatically by operation of law upon failure to substitute heirs within the prescribed period (typically 90 days under Article 120 of Limitation Act). No formal court order is needed for abatement itself; it happens by passage of time. Pushpa Dave @ Devi VS Udai Kumar Rajgarhia

No specific order for abatement of a proceeding under one or other provision of Order 22 is envisaged – Abatement takes place on its own force by passage of time. Pushpa Dave @ Devi VS Udai Kumar Rajgarhia

However, Order 22 Rule 9(2) allows an aggrieved party to apply to set aside abatement by showing sufficient cause for the delay. Order 22 Rule 9(3) explicitly makes Section 5 of the Limitation Act applicable to such applications.

Role of Section 5 Limitation Act in Setting Aside Abatement

Section 5 permits condonation of delay if the applicant shows sufficient cause preventing timely filing. Courts exercise discretion judiciously, balancing justice with statutory rigor.

Key Principles from Case Law

• Procedural Nature of Order 22: Provisions are procedural, not penal, and should not defeat substantive rights without mala fides. Champa Bai S/o Salikram VS Bholaram S/o Salikram - 2023 Supreme(Chh) 541

The provisions of Order 22 of CPC are procedural and should not curtail the substantial rights of the parties. Champa Bai S/o Salikram VS Bholaram S/o Salikram - 2023 Supreme(Chh) 541

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  Sufficient Cause Test: Requires bona fide explanation, absence of negligence, and no deliberate inaction. Lengthy delays demand stronger justification. Pushpa Dave @ Devi VS Udai Kumar Rajgarhia

  
  


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  Ignorance of law (without negligence) may qualify. Sandhya Ghosh VS Wajed Ali Khan - 2023 Supreme(Cal) 1544

  
  


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  Mere counsel negligence or vague health claims often insufficient for inordinate delays (e.g., 2366 days). Lakshmi, (died) vs T. Radhakrishnan - 2026 Supreme(Mad) 208

  
  


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  Liberal Approach: Courts favor substance over technicalities to advance justice, especially if no prejudice to the other side. Bharti Airtel Ltd. VS Velshibhai Arjanbhai Patel Decd - 2024 Supreme(Guj) 1948

  
  

The principles for condonation should favor substantial justice over technicalities. Bharti Airtel Ltd. VS Velshibhai Arjanbhai Patel Decd - 2024 Supreme(Guj) 1948

Landmark Cases on Order 22 Rule 9 and Section 5

1. Substitution of Non-Parties (Article 181 Applies)

In cases where a proposed heir was never a party (e.g., heir of a deceased heir), Article 177/181 Limitation Act (3 years) applies, not the 90-day period under Article 120. Treated as amendment, not fresh substitution. MANINDRA KUMAR BOSE VS SANTI RANI BISWAS - 1951 Supreme(Cal) 49

2. Notice and Natural Justice

Executing courts must issue notice on limitation issues when condoning delay under Section 5 with Order 9/22 applications. Violation breaches natural justice. Dhaneshwar Mahto, son of Late Devi Mahto VS Jailal Mahto - 2023 Supreme(Jhk) 1022

3. Delay Condonation in Appeals

• 549 Days Delay Rejected: No clarity on legal heirs or merits; insufficient cause. Farzan Kali Pardiwala Through Kali Minu Pardiwala vs Sarosh Minu Pardiwala (Decd.) - 2025 Supreme(Guj) 2049


• 371 Days Allowed on Merits: Ignorance of judgment until execution; remand for fresh consideration. Bharti Airtel Ltd. VS Velshibhai Arjanbhai Patel Decd - 2024 Supreme(Guj) 1948

4. Broader Context: Natural Justice Link

Principles echo across cases. In passport impounding, post-order hearing satisfies natural justice. Maneka Gandhi VS Union Of India - 1978 Supreme(SC) 29 Similarly, fair hearing before cancelling polls. Mohinder Singh Gill VS Chief Election Commissioner, New Delhi - 1977 Supreme(SC) 350 Abatement applications demand analogous fairness.

| Case ID | Key Holding | Delay Period | Outcome |
|---------|-------------|--------------|---------|
| Pushpa Dave @ Devi VS Udai Kumar Rajgarhia | Abatement automatic; condone if sufficient cause | N/A | Appeal dismissed |
| Champa Bai S/o Salikram VS Bholaram S/o Salikram - 2023 Supreme(Chh) 541 | Section 5 applies per Rule 9(3); procedural rules aid justice | N/A | Orders set aside |
| Lakshmi, (died) vs T. Radhakrishnan - 2026 Supreme(Mad) 208 | Counsel blame insufficient for 2366 days | 2366 days | Dismissed |
| Bharti Airtel Ltd. VS Velshibhai Arjanbhai Patel Decd - 2024 Supreme(Guj) 1948 | Favor merits over technicalities | 371 days | Restored |

Practical Steps for Litigants

1. File Substitution Promptly: Within 90 days of death notice.


2. Document Sufficient Cause: Affidavits for illness, counsel lapses (with proof), or bona fide ignorance.


3. Accompany with Section 5 Application: Always seek condonation if delayed.


4. Separate Applications if Needed: For restoration of prior apps, Article 137 (3 years) may apply. Shyam S/o Late Shri Mangi Lal Mandora vs Ugamraj Sand S/o Shri Kewalchand Ji Sand - 2025 Supreme(Raj) 1780


5. Appeal Rejections: Writ under Article 227 if procedural errors (e.g., no notice). Dhaneshwar Mahto, son of Late Devi Mahto VS Jailal Mahto - 2023 Supreme(Jhk) 1022

Challenges and Common Pitfalls

• Gross Negligence: Fatal; e.g., self-imposed delays during known proceedings. Raj Kumar vs Joginder Pal - 2025 Supreme(Online)(HP) 7842


• Lack of Bona Fides: Courts probe ulterior motives.


• Prejudice to Opposite Party: Weighs against condonation.

Rules of limitation are not meant to destroy rights of parties... but lack of bona fide and gross inaction are vital factors. Pushpa Dave @ Devi VS Udai Kumar Rajgarhia

Related areas like trade marks show exclusive jurisdiction limits (e.g., Registrar vs. High Court under Section 107 Trade Marks Act), emphasizing contextual application. Whirlpool Corporation VS Registrar Of Trade Marks, Mumbai - 1998 8 Supreme 176

Key Takeaways

• Order 22 Rule 9(3) integrates Section 5 Limitation Act, enabling condonation for abatement set-aside.


• Sufficient cause is fact-specific: bona fides > technical delays.


• Courts lean liberal for justice, but reject negligence or inordinate unexplained delays.


• Always ensure notice and hearings to uphold natural justice. Maneka Gandhi VS Union Of India - 1978 Supreme(SC) 29 Dhaneshwar Mahto, son of Late Devi Mahto VS Jailal Mahto - 2023 Supreme(Jhk) 1022

In sum, while abatement protects estates, judicial discretion under Section 5 often revives meritorious claims. Stay vigilant on timelines to avoid pitfalls. For tailored advice, engage a civil litigator.

Disclaimer: Case laws evolve; verify latest precedents. This post synthesizes reported judgments for educational purposes.