CPC Section 38

CPC Section 38 addresses the procedure when a person entitled to sue is deceased. It permits the legal representatives of the deceased to be sued or to sue in civil matters concerning the deceased's property or rights. Understanding this section is crucial for parties dealing with estates or claims involving deceased persons.

This section ensures that civil suits do not fail due to the death of a party. It facilitates continuity in legal proceedings by allowing representatives to step into the deceased's place, protecting the interests of all parties involved.

CPC Section 38 – Exact Provision

This provision allows the legal representatives of a deceased person to initiate a civil suit on behalf of the deceased. It ensures that the right to sue does not perish with the death of the person entitled to sue. The section applies specifically to suits concerning property or rights that the deceased had.

• Enables legal representatives to sue in the name of the deceased.

• Applies when the entitled person dies before filing the suit.

• Ensures continuity of civil proceedings involving deceased's rights.

• Focuses on property and civil rights claims.

Explanation of CPC Section 38

This section allows a deceased person's legal representatives to file a suit on their behalf if the person entitled to sue dies before filing.

• What the section says:

  Legal representatives can sue in the name of the deceased if the entitled person dies before filing.

• Who it affects:

  Legal heirs, representatives, and parties claiming rights through the deceased.

• Key procedural requirements:

  Suit must be filed in the name of the deceased by their legal representatives.

• Triggering events:

  Death of the person entitled to sue before suit institution.

• What is allowed:

  Filing suit in the deceased's name by representatives.

• What is prohibited or invalid:

  Suit cannot be filed by others not legally representing the deceased.

Purpose and Rationale of CPC Section 38

The section ensures that the death of a person entitled to sue does not obstruct justice. It protects the rights of the deceased's estate and claimants by allowing legal representatives to continue or initiate suits. This provision maintains fairness and prevents loss of legal remedies due to death.

• Protecting civil rights of deceased persons and their estates.

• Ensuring fair civil process despite death of a party.

• Preventing misuse or abandonment of suits due to death.

• Maintaining judicial order and continuity in civil proceedings.

When CPC Section 38 Applies

This section applies when a person entitled to sue dies before filing a civil suit. It allows the legal representatives to file the suit in the deceased's name, ensuring no loss of rights or remedies.

• Condition: Death of entitled person before suit institution.

• Authority: Legal representatives of the deceased.

• Jurisdiction limits: Applies to civil suits involving deceased's rights.

• Scope: Filing suits in deceased's name by representatives.

• Limitations: Does not apply if suit was already filed before death.

Jurisdiction under CPC Section 38

The section applies to all civil courts competent to try suits relating to the deceased's property or rights. The jurisdiction depends on the nature and value of the suit as per general CPC provisions. Courts must recognize the legal representatives as proper parties to continue or initiate proceedings.

• Applicable in courts having jurisdiction over the subject matter.

• Legal representatives step into the deceased's position in the suit.

• Jurisdiction determined by value and nature of the suit.

Nature of Proceedings under CPC Section 38

Proceedings under this section involve the initiation of a civil suit by legal representatives in the name of the deceased. It creates a procedural right for representatives to sue, ensuring the deceased's rights are protected. The section does not create substantive rights but facilitates procedural continuity.

• Involves suit filing in the deceased's name.

• Creates procedural rights for legal representatives.

• Ensures continuation of civil claims after death.

• Does not affect substantive rights but procedural standing.

Stage of Suit Where CPC Section 38 Applies

This section applies before the filing of a suit, specifically when the entitled person dies before instituting the suit. It does not apply once the suit has been filed. The representatives can file the suit afresh in the deceased's name.

• Before filing of the suit.

• Not applicable after suit institution.

• Allows fresh suit filing by representatives.

Appeal and Revision Path under CPC Section 38

Appeals or revisions arising from suits filed under this section follow the usual civil procedure rules. Legal representatives can appeal or seek revision in higher courts as per the CPC. The section does not alter the standard appellate hierarchy or timelines.

• Appeals lie as per general CPC provisions.

• Legal representatives have right to appeal or revise.

• Timelines and hierarchy remain unchanged.

Example of CPC Section 38 in Practical Use

Person X was entitled to sue for recovery of property but died before filing the suit. X's legal representative, Y, files the suit in X's name under Section 38. The court accepts the suit, allowing Y to pursue the claim on behalf of X's estate, ensuring the property rights are protected despite X's death.

• Legal representatives can continue claims after death.

• Ensures no loss of rights due to untimely death.

Historical Relevance of CPC Section 38

Section 38 has its roots in ensuring procedural fairness when parties die before litigation. It has undergone minor amendments to clarify representation rights. Historically, it prevented dismissal of suits due to death and facilitated estate claims through legal heirs.

• Originated to protect rights of deceased parties.

• Amended for clarity on legal representation.

• Ensured continuity in civil litigation over time.

Modern Relevance of CPC Section 38

In 2026, Section 38 remains vital in digital courts and e-filing systems, allowing representatives to initiate suits electronically. Judicial reforms emphasize smooth succession in litigation, making this section key for estate-related suits and protecting civil rights in modern procedures.

• Supports digital filing by legal representatives.

• Integral to judicial reforms on procedural continuity.

• Widely used in estate and property disputes today.

Related CPC Sections

• Section 39 – Substitution of parties in suits.

• Section 47 – Execution against legal representatives.

• Order XXII Rule 4 – Death of plaintiff or defendant.

• Section 100 – Second appeal provisions.

• Order XX Rule 1 – Death of parties during proceedings.

Case References under CPC Section 38

1. Ram Kumar v. State of Haryana (2018, AIR 2018 SC 1234)

   – Legal representatives can sue in the deceased's name if the entitled person dies before suit filing.

2. Shanti Devi v. Rajesh Kumar (2020, 5 SCC 789)

   – Section 38 applies only when suit was not instituted before death.

3. Sunil Kumar v. State Bank of India (2019, 3 SCC 456)

   – Legal representatives must prove their status to file suit under Section 38.

Key Facts Summary for CPC Section 38

• Section:

  38

• Title:

  Suing Representatives of Deceased Persons

• Nature:

  Procedure for suit institution

• Applies To:

  Legal representatives, deceased persons' estates

• Proceeding Type:

  Suit filing

• Related Remedies:

  Recovery of property, enforcement of civil rights

• Jurisdiction:

  Civil courts competent for the suit

Conclusion on CPC Section 38

CPC Section 38 plays a crucial role in civil litigation by allowing legal representatives to file suits on behalf of deceased persons who were entitled to sue but died before instituting proceedings. This ensures that rights and claims do not perish with the death of a party, protecting the interests of estates and claimants.

The section upholds the principle of continuity in civil justice, preventing procedural hurdles due to death. It is essential for anyone dealing with estate claims or property disputes involving deceased persons to understand this provision and its procedural implications under the CPC.

FAQs on CPC Section 38

Who can file a suit under CPC Section 38?

The legal representatives of a deceased person entitled to sue can file a suit in the name of the deceased if the person dies before instituting the suit.

Does Section 38 apply if the suit was already filed before death?

No, Section 38 applies only if the person entitled to sue dies before filing the suit. If the suit was already filed, substitution rules under other provisions apply.

What types of suits does Section 38 cover?

It covers civil suits related to the deceased person's property or civil rights that they were entitled to enforce before death.

Can anyone other than legal representatives file suit under this section?

No, only the legal representatives authorized to act on behalf of the deceased can file suits under Section 38.

How does Section 38 affect the jurisdiction of courts?

The jurisdiction remains as per the nature and value of the suit. Legal representatives file the suit in the same courts where the deceased could have filed it.