Introduction
Section 146 of the Code of Civil Procedure, 1908 deals with proceedings by or against representatives.
The provision allows a person claiming under another person to institute or continue proceedings in certain circumstances, even though that person was not originally the person in whose name the right or liability arose.
In simple words:
Where a person is entitled to a right or liability through another person, the law may permit the proceeding to be taken by or against that person’s representative or successor.
Section 146 is therefore an important provision for dealing with transmission of rights and liabilities during civil proceedings.
Section at a Glance
| Particular | Details |
|---|---|
| Section | Section 146 CPC |
| Subject | Proceedings by or against representatives |
| Main principle | Proceedings may be taken by or against persons claiming under another person |
| Key expression | “Claiming under” |
| Nature | Procedural |
| Purpose | Continuity of proceedings despite transmission of rights or liabilities |
| Scope | Applies to proceedings where the person concerned claims under another person |
Statutory Provision
Section 146 CPC provides:
“Save otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.”
Meaning of Section 146 CPC
In simple terms:
If the CPC or another law allows a proceeding to be taken by or against a particular person, the proceeding may also, subject to the law, be taken by or against a person who claims under that person.
The Section therefore recognises the principle that a proceeding should not necessarily fail merely because the relevant right or liability has passed from one person to another.
Meaning of “Claiming Under”
The expression “claiming under” is the most important phrase in Section 146.
A person “claims under” another when that person’s claim, right, interest or liability is derived from or connected through that other person.
The relationship may arise through circumstances such as:
- Succession;
- Transfer;
- Assignment;
- Devolution of interest;
- Other legally recognised transmission of rights or liabilities.
The precise nature of the relationship depends upon the facts and the applicable law.
Object of Section 146
The main object of Section 146 is to ensure continuity of legal proceedings.
Civil rights and liabilities may change hands during the course of litigation.
For example:
- A person may transfer a property;
- A right may devolve upon another person;
- An interest may be assigned;
- A person may succeed to the rights of another.
Without a provision such as Section 146, a new proceeding might be required every time the relevant legal interest changes hands.
Section 146 helps avoid such unnecessary procedural complications.
Basic Principle
The provision can be understood through this formula:
Person A has a right or liability → Person B claims under A → B may, where permitted, take or face the proceeding.
The Section therefore focuses on the legal relationship between the original person and the person claiming under that person.
Section 146 Is a Procedural Provision
Section 146 does not itself create a substantive right.
It provides a procedural route for a person who claims under another person to participate in or initiate a proceeding where the law permits.
Therefore:
Substantive law → Determines the right or liability
Section 146 → Facilitates the procedural enforcement or continuation of that right or liability
Section 146 and Representatives
The word “representatives” in the heading should not be understood as being limited only to legal representatives of a deceased person.
Section 146 uses the broader expression:
“any person claiming under him.”
Therefore, the provision can extend beyond traditional legal representation where a person derives rights or liabilities through another person.
Legal Representatives and Section 146
Section 146 can be relevant where rights or liabilities pass to a person after the original party’s death.
However, Section 146 and the provisions dealing specifically with legal representatives should not be treated as identical.
Section 146
Focuses on:
Persons claiming under another person.
Legal representative provisions
Deal specifically with:
Representation of the estate of a deceased person in proceedings.
Thus, Section 146 has a potentially broader procedural scope.
Example – Transfer of Property
Suppose:
- A has a claim relating to a property.
- During the proceedings, A transfers the relevant interest to B.
- B now claims under A.
Where the proceeding falls within Section 146 and no contrary provision applies, B may be permitted to take the proceeding or make the relevant application.
The purpose is to ensure that the transfer of the interest does not automatically destroy the procedural remedy.
Example – Assignment of a Right
Suppose A has a legally enforceable right and assigns that right to B.
B now claims under A in respect of that right.
If a proceeding could have been taken by A and no contrary provision applies, Section 146 may permit B to take the proceeding as a person claiming under A.
Example – Succession
Suppose a person dies and a legal successor obtains the deceased person’s interest.
The successor may, depending on the nature of the right and applicable provisions, claim under the deceased person.
Section 146 may facilitate proceedings by or against the successor where the statutory requirements are satisfied.
“Save Otherwise Provided”
The opening words of Section 146 are extremely important:
“Save otherwise provided by this Code or by any law for the time being in force…”
This means Section 146 is subject to:
- Other provisions of the CPC; and
- Other applicable laws.
Therefore, Section 146 cannot be used where another specific statutory provision prohibits or regulates the proceeding differently.
Easy Rule:
Section 146 applies → unless another law provides otherwise.
Section 146 Is Not an Unlimited Right
A person cannot simply invoke Section 146 by claiming some connection with another party.
The person must genuinely claim under the relevant person.
The Court must consider:
- Whether the person derives the relevant right or liability from the original person;
- Whether the proceeding is one to which Section 146 applies;
- Whether another provision of law governs the matter;
- Whether the person’s claim is legally recognised.
Section 146 and Assignment
Assignment is an important context in which the principle of Section 146 may become relevant.
Where a legal right is validly assigned, the assignee may claim under the assignor.
However, whether the assignee can institute or continue a particular proceeding depends upon:
- The nature of the right;
- The applicable substantive law;
- The CPC;
- Any special statutory restriction.
Therefore:
Assignment alone does not automatically guarantee procedural entitlement in every case.
Section 146 and Devolution of Interest
Where an interest in the subject matter of litigation passes from one person to another, Section 146 may facilitate proceedings by or against the person who has acquired that interest.
This helps maintain procedural continuity.
However, the Court must still examine the specific provisions applicable to the transfer or devolution.
Section 146 and Execution Proceedings
The principle of Section 146 can also become relevant in execution-related matters.
Where a person derives an enforceable interest from a decree-holder or another person entitled to proceed, the question may arise whether the successor or transferee can take proceedings.
Section 146 may provide the procedural basis, subject to the CPC and other applicable law.
Section 146 and Order XXII
Section 146 should be distinguished from Order XXII, which deals with matters such as:
- Death;
- Marriage;
- Insolvency of parties;
- Devolution of interest during the pendency of proceedings.
Section 146
Provides a broader rule concerning persons claiming under another person.
Order XXII
Provides specific procedures for particular changes in the status of parties.
Therefore, where a specific procedure applies, that procedure must be followed.
Section 146 and Section 50
Section 50 concerns execution of a decree against the legal representative of a deceased judgment-debtor.
Section 146 is broader in its wording and concerns persons claiming under another person.
Thus:
Section 50 → Legal representative of deceased judgment-debtor
Section 146 → Person claiming under another person
Important Features of Section 146
1. It promotes continuity
Proceedings do not necessarily become ineffective merely because the relevant right or liability passes to another person.
2. It covers persons claiming under another
The key relationship is one of legal derivation or succession.
3. It is subject to other laws
The opening words expressly preserve contrary provisions of the CPC and other laws.
4. It is procedural
It facilitates the conduct of proceedings rather than creating substantive rights.
5. It has broad application
Its language is not restricted to one specific category of representative.
Common Confusions About Section 146
1. “Representative” does not mean only legal representative
The Section uses the broader concept of a person claiming under another.
2. Section 146 does not automatically transfer substantive rights
The underlying right must legally pass to the person.
3. Every successor cannot automatically invoke Section 146
The person must fall within the expression “claiming under him.”
4. Section 146 is subject to specific provisions
Where the CPC or another law provides a different procedure, that specific provision controls.
5. Section 146 is different from Order XXII
Order XXII contains specific rules dealing with death, insolvency, marriage and devolution of interest during proceedings.
Practical Importance in Civil Litigation
Section 146 is useful when the identity of the person holding the relevant right or liability changes.
Before relying on Section 146, a practitioner should consider:
- Who was the original person?
- Who is now seeking to proceed?
- How does the new person claim under the original person?
- Has the relevant right or liability legally passed?
- Is there any specific CPC provision governing the situation?
- Does another law restrict the proceeding?
- Is the new person entitled to take or defend the particular proceeding?
Importance for Law Students and Judiciary Exams
Section 146 is frequently tested through its key expression:
“Any person claiming under him.”
What to Remember
- Section 146 deals with proceedings by or against representatives.
- It allows proceedings by or against a person claiming under another person.
- It applies subject to contrary provisions of the CPC or other law.
- It is a procedural provision.
- The provision promotes continuity of proceedings.
- It is broader than the concept of a legal representative in the narrow sense.
- The person must actually derive the relevant right or liability through the original person.
Important Questions to Prepare
- What is the object of Section 146 CPC?
- What is meant by “claiming under”?
- Who can initiate proceedings under Section 146?
- Can Section 146 apply to an assignee?
- Does Section 146 apply to successors?
- Is Section 146 limited to legal representatives?
- What is the effect of the words “save otherwise provided”?
- Distinguish Section 146 from Order XXII.
- Distinguish Section 146 from Section 50 CPC.
- Explain the procedural significance of Section 146.
Key Legal Principles
1. Proceedings can follow the legal interest
Where a person derives the relevant interest from another, the proceeding may, subject to law, be taken by or against that person.
2. “Claiming under” is the controlling expression
The person must derive the relevant right, interest or liability through the original person.
3. Specific law prevails
Section 146 operates subject to contrary provisions of the CPC or any other applicable law.
4. The provision promotes procedural continuity
A change in the person holding the relevant interest does not necessarily require an entirely new proceeding.
5. Section 146 does not create substantive rights
The underlying right must arise independently under applicable substantive law.
Key Takeaways
| Concept | Principle |
|---|---|
| Section | Section 146 CPC |
| Subject | Proceedings by or against representatives |
| Main expression | “Any person claiming under him” |
| Purpose | Continuity of proceedings |
| Nature | Procedural |
| Possible situations | Succession, transfer, assignment, devolution of interest |
| Limitation | Subject to the CPC and other applicable laws |
| Key distinction | Not limited to traditional legal representatives |
| Related provisions | Order XXII, Section 50 CPC |
ALSO READ: Section 145 – Enforcement of Liability of Surety
Conclusion
Section 146 CPC provides an important procedural rule allowing a proceeding that may be taken by or against one person to, subject to the law, be taken by or against another person claiming under that person.
Its primary purpose is to prevent procedural difficulties when rights, interests or liabilities pass from one person to another.
The most important words to remember are:
“Any person claiming under him.”
The provision is broad but not unlimited. It operates subject to any contrary provision in the CPC or another applicable law and does not itself create or transfer substantive rights.
Easy Formula to Remember
Section 146 = Proceeding by/against A → B claims under A → B may proceed, subject to law.
