Substitution Petition, Abatement & Condonation of Delay under CPC: Procedure, Time Limits & Legal Provisions

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Understanding the Basics

When a suit is filed, there are two sides to the litigation. The party(s) filing the suit are called the plaintiff(s), and the opposing side is the defendant(s). There might be a single plaintiff or several plaintiffs and a sole defendant or many defendants. In such civil litigation, the death of a party during the pendency of a suit or appeal raises important procedural questions as to what to be done in those cases. The Civil Procedure Code, 1908 (CPC) provides specific provisions to address such situations through substitution petitions, and for setting aside abatement in case of delay. The Limitation Act, 1963 governs the time frame within which these actions must be taken. Here’s a simplified guide to understanding these concepts.

What Is a Substitution Petition?

A substitution petition is filed when a party to a suit or appeal dies, and their legal representative (LR) needs to be brought on record to continue the proceedings. This is crucial to ensure the continuity of the litigation and to prevent the suit from abating.

Relevant Provision for Substitution: 

Order XXII Rule 3

In case of the death of one or several plaintiffs 

Order XXII Rule 4 

In case of the death of one or more defendants.

Time Limit for filing such petition for substitution: 

90 days from the date of death of the party (as per Article 120 of the Limitation Act, 1963).

Who is to file the application for Substitution?

Since the plaintiff is the dominus litis, i.e. the master of the suit, he is to undertake all the responsibilities to carry forward the suit. Any procedural application such as petition for substitution, service of notice, amendment to plaint etc is to be undertaken by the plaintiff only. Here by Plaintiff it is referred to Appellants as well in case of appeals. Hence if in the appellate stage any such application is needed to be filed, then it is to be filed by the appellants only. In the latter part of this article, we will discuss the same through illustrations.

Duty of the defendants/respondents:

Even though it is the responsibility of the plaintiff/appellant to file the appropriate application for substitution in case of the death of the party, it is the duty of the defendant/respondent and their counsel to inform the court about the death of the party. There are instances when plaintiffs and respondents are staying at faraway places, and in case of the death of a defendant, it remains unknown to the plaintiff so that appropriate applications could not be filed within stipulated time. In such a scenario, it is the duty of the remaining defendant/respondent or their counsel to intimate the court about the death of such party in view of the provisions contained in Order 22 Rule 10-A of CPC.

What is Abatement?

Abatement refers to the automatic suspension or termination of a legal proceeding due to the failure to substitute the deceased party within the prescribed time. If the plaintiff or appellant dies and their LR is not substituted in time, the suit or appeal abates. 

If a defendant dies and their LR is not brought on record, the suit against that defendant abates.

Partial vs. Abatement as Whole

Partial Abatement occurs when the death of one party does not affect the entire cause of action. For example, if there are several defendants and only one dies. In such cases, the estate of the deceased defendant is substantially represented by other defendants.

Full Abatement occurs when the entire suit becomes infructuous due to the failure to bring the LR of the deceased on record.

Setting Aside Abatement

Suppose a suit or appeal abates due to delay in filing the petition for substitution, i.e., beyond the prescribed period of 90 days from the date of death of that party. In that case, the remaining plaintiffs/appellants can file an application to set aside the abatement under Order XXII Rule 9 of CPC. The court may allow it if sufficient cause is shown.

Time Limit: 

60 days from the date of abatement (as per Article 121 of the Limitation Act).The application must be supported with reasons explaining the delay and a request for condonation of delay if it exceeds the time limit.

What is Condonation of Delay?

When there is a delay in filing a substitution petition or an application to set aside abatement, the party can seek condonation of delay under Section 5 of the Limitation Act, 1963.

The applicant must show:

• Sufficient cause for the delay.
• Bona fide intention to pursue the matter.
• That the delay was not due to negligence or mala fide conduct.

The court exercises its discretion to condone the delay if it is satisfied with the explanation, and also may impose costs while allowing such an application to condone the delay..

Illustrations:

1. If a party to the litigation happened on 1st of March, 2025, and steps were taken for substitution in 10th May, 2025 - Only one application is to be filed. I.E. only the application U/O 22 Rule 3 or 4, as the case may be is to be filed.
2. If steps were taken on 10th June, it comes to 101 days from the date of death. In this case, since it is beyond 90 days, another application for setting aside the abatement U/O 22 Rule 9 is to be filed along with the substitution application. I.E. Two applications need to be filed.
3. If steps are taken on 20th August, 2025, then it comes to 172 days from the date of death. Hence along with the applications for substitution and setting aside abatement, a separate application needs to be filed U/S 5 of the Limitation Act, 1963 to condone the delay of 82 days (172-90). I.E. Three Applications are to be filed.

Important Tips 

For Litigants:

• Always monitor the status of parties in ongoing cases by keeping in touch with your counsel.
• In case of death of any party to the proceeding, inform the same to your counsel without any further delay.
• Try to file substitution petitions within 90 days of the death of a party.
• In case the application is filed beyond 90 days from the date of death of the party, file an application under Order XXII Rule 9 CPC to set aside abatement showing sufficient cause.
• If the application is filed at a belated stage of beyond 150 days (90+60), file a separate application for condonation of delay under Section 5 of the Limitation Act.

For Lawyers/Legal Researchers:

• In petition under Order 22 Rule 3 or 4, as the case may be, simply state about the date of death of such party. And pray for allowing the LRs or legal heirs to be substituted in place of the deceased person.
• If the application is filed after 90 days from the date of death of the party, but within 150 days, then file another application under Order 22 rule 9 of CPC. State a concise reason as to why the petition for substitution could not be filed within 90 days and pray for setting aside the abatement against such deceased person.
• If the application is filed beyond 150 days (90+60), file another application under Section 5 of the Limitation Act, 1963. State precisely the delay that occurred and the reasoning thereof. 
• Bonus tip: If the death of a party is intimated to the court by the counsel for the defendant/their counsel, take the plea that such death was not within the plaintiff/appellant's knowledge, and after such intimation U/O 22 Rule 10-A, it came to light.
• Show the bona fides of the plaintiff and state that the delay so occurred is neither intentional nor deliberate.

Conclusion

Timely action is crucial in litigation involving deceased parties. Understanding the provisions for substitution, abatement, and condonation of delay under CPC and the Limitation Act can prevent procedural setbacks and ensure that justice is not denied due to technicalities. For any civil case involving death of a party, always consult with your lawyer in time without any delay to ensure compliance with these provisions and avoid abatement of your claim or defense. If steps are taken within appropriate time, the litigants would be able to save themselves monetarily and would not be subjected to unnecessary expenses.