AAP Tax Law
Civil Procedure • Updated 29 August 2026

Affidavit for Substitution of Legal Heirs under Order XXII Rule 3 CPC

Updated specimen affidavit for bringing the legal representative of a deceased plaintiff on record where the right to sue survives, together with limitation and abatement guidance.

Important: Order XXII Rule 3 CPC applies to the death of a plaintiff. Where the deceased party is a defendant, Order XXII Rule 4 ordinarily governs substitution. Order XXII Rule 11 applies the provisions of Order XXII to appeals, subject to its terms.

When a plaintiff dies during the pendency of a civil suit and the right to sue survives, the court may, on an appropriate application, bring the deceased plaintiff's legal representative on record and continue the proceeding. A supporting affidavit should identify the deceased party, date of death, proposed legal representatives and the factual basis for seeking substitution.

Order XXII Rule 3 Death of one of several plaintiffs or of a sole/sole surviving plaintiff where the right to sue survives.
Article 120 Generally 90 days from the date of death for bringing legal representatives on record.
Abatement If substitution is not made within the prescribed period, the suit may abate so far as the deceased party is concerned.

Sample Affidavit for Substitution under Order XXII Rule 3 CPC

This specimen is intended for substitution after the death of a plaintiff. Modify the cause title, case type, party description and factual paragraphs according to the actual proceeding and local court rules.

IN THE COURT OF ______________________________ AT __________________
CIVIL SUIT / APPEAL NO. ______ OF 20____
I.A. / APPLICATION NO. ______ OF 20____

____________________________ APPLICANT(S)

VERSUS

____________________________ RESPONDENT(S)

AFFIDAVIT

I, ____________________________, son/daughter/wife of ____________________________, aged about ____ years, resident of ________________________________________________________, do hereby solemnly affirm and state as follows:

1. That I am the applicant / proposed legal representative in the accompanying application and am well acquainted with the facts and circumstances of the case. I am therefore competent to swear this affidavit.

2. That ____________________________, who was the plaintiff / appellant in the above proceeding, died on ________________. A copy of the death certificate is filed with the application, where required.

3. That the right to sue survives notwithstanding the death of the aforesaid plaintiff / appellant and the proceeding is capable of being continued by or against the legal representative(s) in accordance with law.

4. That the deceased left behind the following legal representative(s):

(i) ____________________________ - relationship: ____________________________
(ii) ___________________________ - relationship: ____________________________
(iii) __________________________ - relationship: ____________________________

5. That the applicant seeks to bring the above legal representative(s) on record in place of the deceased plaintiff / appellant for the purpose of continuing the present proceeding.

6. That the proposed legal representative(s) have an interest in representing the estate of the deceased in the present proceeding and their substitution is necessary for complete and effective adjudication.

7. That, to the best of my knowledge and belief, the particulars of the legal representatives stated in the accompanying application are true and complete. If any other person claims to be a legal representative, the matter may be determined by this Hon'ble Court in accordance with law.

8. That the accompanying application is within the period prescribed by law. If there is any delay or abatement, appropriate applications for setting aside the abatement and/or condonation of delay have been or are being filed, as may be required.

9. That no prejudice will be caused to the opposite party by bringing the legal representative(s) of the deceased on record, whereas failure to do so may affect continuation and adjudication of the proceeding.

10. That it is therefore just and necessary that this Hon'ble Court may be pleased to allow the accompanying application and bring the proposed legal representative(s) of the deceased plaintiff / appellant on record, subject to such orders as this Hon'ble Court may deem fit.

DEPONENT

VERIFICATION

Verified at ________________ on this ____ day of ________________, 20____, that the contents of paragraphs 1 to ____ above are true and correct to my knowledge and/or based on records believed by me to be true, and that nothing material has been concealed therefrom.

DEPONENT

Complete attestation, identification, oath or notarisation formalities according to the rules and practice of the court concerned.

Order XXII Rule 3 CPC: Death of a Plaintiff

Order XXII Rule 3 applies where one of several plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or where a sole or sole surviving plaintiff dies and the right to sue survives.

On an application made in that behalf, the court is to cause the legal representative of the deceased plaintiff to be made a party and proceed with the suit. If no application is made within the period limited by law, the suit abates so far as the deceased plaintiff is concerned.

Official Code of Civil Procedure, 1908 - India Code

If the Deceased Party is a Defendant: Order XXII Rule 4 CPC

Order XXII Rule 3 should not be used as a generic substitution provision for every deceased party. Where one of several defendants or a sole defendant dies and the right to sue survives, the substitution application ordinarily falls under Order XXII Rule 4 CPC. The affidavit and prayer should therefore identify the correct rule according to which side of the case the deceased person represented.

For appeals, Order XXII Rule 11 makes the Order applicable to appeals, with references to plaintiff, defendant and suit being read in the appellate context as prescribed by the CPC.

Limitation for Substitution and Setting Aside Abatement

Article 120 of the Limitation Act, 1963: an application under the CPC to have the legal representative of a deceased plaintiff, appellant, defendant or respondent made a party generally carries a limitation period of 90 days from the date of death.

Article 121: where abatement has occurred, an application under the CPC to set aside the abatement generally carries a limitation period of 60 days from the date of abatement.

Order XXII Rule 9 deals with the effect of abatement and applications to set it aside. Section 5 of the Limitation Act may become relevant to delay in an application for setting aside abatement where sufficient cause is shown, subject to the applicable statutory requirements and judicial interpretation.

Official Limitation Act, 1963 - India Code

Practical Filing Notes

  • State the exact date of death and ordinarily annex a death certificate or other accepted proof.
  • Identify all known legal representatives and their relationship to the deceased.
  • Explain that the right to sue survives and why continuation of the proceeding is legally permissible.
  • Use Order XXII Rule 3 for a deceased plaintiff and Order XXII Rule 4 for a deceased defendant, as applicable.
  • Check whether the application is within 90 days from the date of death. If abatement has occurred, examine the need for a separate application under Order XXII Rule 9 and any delay-condonation application.
  • Check applicable State amendments, High Court rules, filing formats, court fees and affidavit-attestation requirements before filing.

Frequently Asked Questions

Does every death of a party cause the suit to abate?

No. Order XXII Rule 1 provides that the death of a plaintiff or defendant does not cause the suit to abate if the right to sue survives. The procedural consequences then depend on the applicable provisions for substitution.

Can Order XXII Rule 3 be used when a defendant dies?

Ordinarily no. Rule 3 concerns death of a plaintiff. Rule 4 is the relevant provision dealing with death of one of several defendants or of a sole defendant where the right to sue survives.

What is the usual limitation period for substitution?

Article 120 of the Limitation Act, 1963 generally provides 90 days from the date of death for bringing the legal representative of a deceased plaintiff, appellant, defendant or respondent on record.

What if the 90-day period has expired?

The proceeding may have abated as against the deceased party. Depending on the facts, an application to set aside abatement under Order XXII Rule 9, read with the relevant limitation provisions, and an application addressing delay may be necessary.

Legal information notice: This specimen is general information. Substitution depends on the identity of the deceased party, survival of the cause of action, date of death, limitation, possible abatement, legal-representative disputes and applicable State/High Court procedural rules.