“Nullus Commodum Capere Potest de Injuria Sua Propria” Triumphs Over Procedural Abatement
A Commentary on Binod Pathak & Ors. v. Shankar Choudhary & Ors., 2025 INSC 842

1. Introduction

The Supreme Court’s judgment in Binod Pathak v. Shankar Choudhary addresses a deceptively simple procedural question that plagues civil litigation: does an appeal automatically perish when some respondents die and their legal representatives are not substituted in time? The Court uses this opportunity to interpret Order XXII Rule 10-A of the Code of Civil Procedure, 1908 (CPC)—the “duty-of-pleader” clause—and to harmonise it with the abatement provisions in Rule 4.

Facts at a glance:

• Suit 1984: Plaintiffs (Pathak family) sought declaration of title and possession over ancestral land.
• Trial 1989: Suit dismissed.
• First Appeal 2009: Allowed—decree in plaintiffs’ favour.
• Second Appeal (Patna HC) 2014: High Court reversed the decree, holding that the first appeal had ipso facto abated because several defendant-respondents had died during its pendency without substitution.
• Supreme Court 2025: Sets aside the High Court decision, remands matter, and for the first time lays down a structured approach on the inter-play between Rules 4 and 10-A.

2. Summary of the Judgment

1. The High Court misdirected itself by treating abatement under Order XXII Rule 4 as an “automatic” consequence once substitution was not made within limitation.
2. Rule 10-A, inserted in 1976, casts a prima facie duty on the pleader of the deceased party to inform the court and the opposite side about the death. Non-compliance by that pleader precludes the benefiting party from invoking abatement.
3. The maxim nullus commodum capere potest de injuria sua propria (no one can profit from his own wrong) governs the field; procedural default by one side cannot become a weapon to defeat substantial justice for the other.
4. The Supreme Court remanded the second appeal to be heard afresh on merits, directing the High Court to decide the nature of the decree (joint/indivisible) and to permit proper substitution if necessary.

3. Analysis

3.1 Precedents Cited and Their Influence

• Gangadhar v. Raj Kumar (1984) 1 SCC 121 – first case interpreting Rule 10-A; held that the advocate’s duty survives the client’s death by a “deeming fiction”. The present judgment relies heavily on its rationale.
• United Bank of India v. Kanan Bala (1987) 2 SCC 583 – observed that Rule 10-A is procedural, not penal. SC re-affirms but clarifies that equity will deny benefit where the duty is breached.
• Kathpalia v. Lakhmir Singh (1984) 4 SCC 66 – delay condonation jurisprudence; invoked to show liberal approach when lawyer lapses cause delay.
• Kusheshwar Prasad Singh v. State Of Bihar (2007) 11 SCC 447 – articulated the clean-hands doctrine; provides conceptual backbone for denying advantage from one’s wrong.
• P. Jesaya v. Sub-Collector (2004) 13 SCC 431 – condemned litigants who keep death secret until judgment; Court quotes it to label such tactics “taking the court for a ride”.

3.2 The Court’s Legal Reasoning

1. Statutory Re-construction
   The Court traces the legislative history of Rule 10-A—Law Commission (54^th Report) recommendations, 1976 Amendment, and Joint Committee observations—to show Parliament’s intent: prevent surprise abatement and promote merits-based adjudication.
2. Hierarchy of Rules
   Rules 4 and 10-A are not in conflict; Rule 10-A operates earlier in time. Only after notice of death is duly served can the limitation clock under Rule 4(3) begin to tick. Where no notice is given, equitable principles suspend the adverse consequence.
3. Equitable Maxims
   The Court carefully distinguishes two Latin maxims:
   “Ex injuria jus non oritur bars creation of a new right from a wrong, whereas nullus commodum… prevents a litigant from using his own wrong to obtain a procedural advantage.”
   It chooses the latter as the governing norm in abatement cases.
4. Nature of the Advocate’s Duty
   Duty is two-fold: (a) intimate the fact of death; (b) furnish particulars of legal representatives so the other side can act meaningfully. Although the rule is “procedural,” a court cannot ignore its breach when deciding abatement.

3.3 Potential Impact

The judgment carries far-reaching procedural and ethical implications:

• Ethics of Advocacy: Reinforces that an advocate’s obligation to the court transcends client instructions. Concealment of death can invite judicial opprobrium and cost orders.
• Civil Case Management: Courts are expected to (i) record an advocate’s death-notification, (ii) issue notice to other parties, and (iii) mark limitation from that date. Registry protocols may have to be updated.
• Reduction of Opportunistic Litigation: Parties can no longer lie in the weeds hoping to spring an abatement trap— a common tactic in protracted land disputes.
• Guidance on Joint/Indivisible Decrees: The Supreme Court clarifies that assessment of whether a decree is “joint and indivisible” must precede any finding on total abatement.

4. Complex Concepts Simplified

Abatement

Extinction of a suit/appeal against a party because necessary heirs are not brought on record within limitation.

Order XXII Rule 4 CPC

Obliges the plaintiff/appellant to substitute legal representatives of a deceased defendant/respondent within 90 days (Art. 120 Limitation Act). Failing which, the proceeding “abates” as to that party.

Order XXII Rule 10-A CPC

Introduced in 1976. When a lawyer learns his client has died, he must inform the court; the court then notifies the opposite side. This ensures that limitation for substitution starts only after informed notice.

“Joint and Indivisible Decree”

A decree whose rights and liabilities are inseparable among parties. Death of one indispensable party can derail the entire appeal.

Legal Maxims

• Ex injuria jus non oritur – A legal right cannot spring from an illegal act.
• Nullus commodum capere potest de injuria sua propria – Nobody may gain a benefit from their own wrong. The present case applies this maxim.

5. Conclusion

The Supreme Court’s decision in Binod Pathak is more than a procedural correction; it is a reaffirmation that the civil process exists to advance substantive justice, not to reward gamesmanship. By making Rule 10-A the pivot, the Court:

• Prevents litigants from exploiting procedural loopholes created by their own breach of duty.
• Clarifies the ethical responsibilities of advocates beyond client loyalty.
• Provides a practical roadmap for High Courts when confronted with partial deaths in long-running appeals.

Going forward, every litigator and trial registry must internalise the message: death of a party is not a windfall; silence about it is not strategy; and equity will not permit abatement to become an instrument of injustice.