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Death, Marriage and Insolvency of parties

Order 22 deals with the creation, assignment or devolution of interest during the pendency of suits. It also applies to appeals, but not to execution proceedings. The provisions of Order 22 are exhaustive. They should, however, be liberally construed to serve the end of justice.

Such creation, assignment or devolution may arise in the following circumstances:

  1. Death of a party (rule 1 to 6, 10A)
  2. Marriage of a party (rule 7)
  3. Insolvency of a party (rule 8) or;
  4. Assignment of interest (rule 10)

(I) Death Of Party: Rules 1-6

Order 22, Rules 1-6,9 and 10-A relate to death of a party, i.e. plaintiff or defendant and consequences of such death. Where a party to a suit dies, the first question which requires consideration is: Whether the right to sue survives? If the right does not survives, the matter is over. But if it survives, the suit will not abate.
Let us consider the effect of death of parties to suit.
  1. Death of plaintiff

    Where the sole plaintiff dies, the suit will not abate, if the right to sue survives. It can be continued by the heirs and legal representatives of the deceased plaintiff. If the right to sue does not survive, the suit will come to an end.

    Where one of the several plaintiff dies and the right to sue survives to the surviving plaintiff or plaintiff’s, the court will make an entry to that effect and proceed with the suit by surviving plaintiff or plaintiffs.

    Where plaintiff dies after hearing and before pronouncement of judgment, the suit shall not abate. The same principle will apply in case of death of the plaintiff after passing of preliminary decree and before final decree.

    Once the final decree is passed, the rights of the parties are adjudicated and the question is only of execution of the decree. The provisions relating to abatement do not apply to execution proceedings; they, however, apply to appeals.

  2. Death of defendant

    Where the sole defendant dies, the suit shall not abate if the right to sue survives. It can be continued against the heirs and legal representatives of the deceased defendant.
    Where one of the several defendants dies and the right to sue survives against the surviving defendant or defendants, or where the sole surviving defendant dies and the right to sue survives, the court, on an application by the legal representative of the deceased defendant, will make him a party and proceed with the suit.

    When no such application is made within the period of limitation (ninety days), the suit shall abate as against the deceased defendant.

    Where the defendant dies after hearing and before the pronouncement of judgment, the suit shall not abate. The suit also does not abate on account of an unnecessary party.

  3. Right to sue

    As already noted, when a party to a suit dies, the first question to be decided a weather the right to sue survives or not. If doesn’t, there is an end to the suit. If it does, the suit will not abate. It can be continued by or against the heirs and legal representative of the deceased party.

    The expression right to sue has not been defined in the Code, but it may be interpreted to mean right to seek to relief. In other words, right to sue survives if the cause of action survives or continues.

    The general rule is that all rights of action all demands whatsoever, existing in favour of or against a person at the time of his death, survive to or against his representatives. But in case of a personal actions, i.e. actions where the relief sought personal to the deceased or the rights intimately connected with the individuality of the deceased, the right to sue will not survive to or against his representatives. In these case, the maxim action personalis moritur cum persona (a personal action dies with the person) applies.

    This principle is found in Section 37 of the Indian Contract Act, 1872 and Section 306 of the Indian Succession Act, 1925.

    Thus, it has been held that the right to sue survives in a suit by a landlord against his tenant for the possession of the rented house after the death of the landlord; or in a suit for accounts against a trustee where the trustee died; or in a suit for partition of ancestral property by a coparcener after his death; or in a suit for pre-emption. On the other hand, it has been held that the right to sue does not survive in the following cases; in a suit for a damages for assault, personal injuries or for malicious prosecution; or for defamation; or for breach of contract of betrothal; or for dissolution of marriage; or in a suit for specific performance of a contract involving exercise of special skill like a promise to paint a picture, or to sing a song.
     
  4. Applicability to other proceedings : Rules 11-12

    The maxim actio personalis mortiur cum persona (a personal action dies with the person) does not apply only to suits in those cases where the plaintiff dies during the pendency of a suit but also to cases where the plaintiff dies during the pendency of appeal or appeals. This is on the footing that by a reason of the dismissal of the suit by the trial court or the first appellate court, as the case may be, the plaintiff stands relegated to his original position before the trail court.
     
  5. Duty of pleader: Rule 10-A

    Rule 10-A as inserted by the Amendment Act of 1976 imposes an obligation on the pleader of the parties to communicate to the court the fact to the death of the party represented by him.

    As a general rule, on the death of the client , his contract with the pleader comes to an end and so the authority of the pleader to act on behalf of his client expires. Such a situation, however, creates many complications. A provision is, therefore, made which imposes a duty on the part of the pleader to inform the court of the death of his client. It also enacts that for the said purpose the contract between the pleader and the party shall be deemed to subsist.
     
  6. Duty of Court: Rule 10-A

    Rule 10-A also casts duty on the court to give notice of death of party to the other party. The duty is statutory and must be observed which is clear from the words the court shall thereupon give notice of such death to the other party.
     
  7. Effect of abatement: Rule 9

    Where the suit abates or is dismissed due to failure of the plaintiff to bring the legal representative or representatives of the deceased party, no fresh suit will lie on the same cause of action. The only remedy available to the plaintiff or the person claiming to be the legal representative is to get the abetment set aside.
    Such abetment or dismissal of the suit, however, does not operate as res judicata.
     
  8. General Principles

    With regard to the death of a party to a proceeding, from the various judgments of the Supreme Court, the following general principles emerge:
    1. If an application is not made within the time allowed by law to bring the legal representatives of the deceased defendant is concerned. Such abatement is automatic and no specific order is envisaged by the Code.
    2. When once a suit or appeal is abated, a specific order setting aside such abatement is necessary.
    3. Where in a proceeding, a party dies and one of the legal representatives is already on record in another capacity, what is necessary is that he should be described also an heir and legal representative of the deceased party. Failure to describe him as such would not, however abate proceeding.
    4. If there are two or more heirs and legal representatives of the deceased party and one or more have been brought on record within a time, a suit or appeal will not abate on the ground that all the legal representatives have not been brought on record in time.
    5. If the legal representatives of the deceased plaintiff or the deceased defendant are brought on record within the prescribed period at one stage of the suit, it will for the benefit of the subsequent stage of the suit.
    6. Where a plaintiff or an appellant after diligent and bona fide inquiry ascertains who the legal representatives of deceased defendant or respondent are, and brings them on record within the prescribed period, there is no abatement of the suit or appeal if the impleaded legal representatives sufficiently represent the estate of the deceased. The decree passed by the court in a such case will bind not only those impleaded but the entire estate too.
    7. The above rule however does not apply where the impleading of a person as a legal representative is not found too be bona fide or where there has been fraud or collusion between the creditor and heir impleaded or there are other circumstances which indicate that there has not been a fair or real trial.
    8. The doctrine of abatement applies to an appeal also.
    9. No suit can be filled against a dead person. But if a suit is filled against a dead man without a knowledge that he is dead, it is non est. On an application by the plaintiff, the court may permit to implead the right defendant in the place of the deceased defendant. The court’s satisfaction breaths life into the suit.
    10. Legal representatives of the deceased are entitled to take all the contentions available to the deceased. But if they intend to take personal or individual defences, they must get themselves impleaded in their personal capacity.
    11. On the death of the plaintiff, whether or not the suit/appeal abates depends upon whether the suit/appeal is founded entirely on torts or on contract.
    12. No decree can be passed in favour of or against a dead person. But such a decree is not necessarily a nullity. In a certain circumstances, it is a permissible for the court to reopen the proceedings or to remand the case after hearing the parties likely to be affected thereby.
    13. A suit or appeal does not abate on account of the death of an unnecessary, non-material or pro forma defendant or respondent.
    14. A suit filed in a representative capacity does not abate on the death of one of the plaintiff’s nor a suit filed by a karta of a Hindu undivided family abates on his death and the succeeding karta can continue the proceedings.
    15. Neither a suit nor an appeal abates where any party to a suit or an appeal dies between the conclusion of hearing and the pronouncement of the judgment.
    16. If the parties proceed with the matter without raising any objection regarding abatement of suit or appeal, no objection can be allowed at a later stage.
    17. Where no sufficient cause for condonation of delay for setting aside an abatement is made out by the applicant, the suit or appeal requires to be dismissed. A strong case on merits is not a ground for condonation for delay.
    18. Consideration for condonation for delay under Sec.5 of the Limitation Act and for bringing heirs on record for setting aside abatement under Order 22 are distinct and different.
    19. The expression sufficient cause should be constructed liberally to advance substantial justice. A strict and pedantic approach should not be taken by the court.
    20. A mere excuse about the plaintiff not knowing of the death of the opposite party is not sufficient. He has to state reasons, which, according to him, led to his not knowing of the death of the defendant within a reasonable time and satisfy the court about it.
    21. Where a suit abates or dismissed for the non-substitution of the legal representative or representatives of the deceased party, no fresh suit can be filed on the same cause of action. However, the cause of action abated suit may be invoked as a defence in a subsequent suit.
    22. The court has no inherent power under Section 151 of the Code to implead legal representatives of deceased respondent if the suit had abated on account of the appellate not taking appropriate steps within a time to bring the legal representatives of the deceased party on record.
    23. When a suit or appeal abates, a very valuable right accrues to the other party and such a right cannot be ignored or interfered with lightly. In the name of doing substantial justice to one party, no injustice should be done to the other party.
    24. Laches or negligence furnish no good grounds for setting aside abatement. A party guilty of negligence must bear the consequences and must suffer. However, if there is a sight negligence or minor laches which is not intentional in a not making an application for setting aside abatement can be granted for doing substantial justice. The rural background of the parties can also be taken into account for this purpose.
    25. Where a joint and indivisible decree is passed by the court below in favour of two or more plaintiffs and one of them dies and the defendant fails to bring the heirs and the legal representatives of the deceased plaintiff on record in time, the appeal against the other respondents also abates.
    26. In cross-appeal arising from the same decree where parties to a suit adopt rival positions, on the death of the party if his legal representatives are impleaded in one appal it will not be enure for the benefit of cross appeal and the same would abate.
    27. If an appeal as well as cross-objections in the appeal are before the court and respondent dies, substitution of his legal representatives in the cross-objections, being part of the same record, would enure for the benefit of the appeal and the failure of the appellant to implead the legal representatives of the deceased respondent would not have the effect of abating the appeal but not vice versa.
    28. Though sufficient cause cannot be constructed liberally merely because the defaulting party is the Government, yet delay in official business requires a public justice approach. Certain amount of the latitude within reasonable limits is permissible having regard to impersonal bureaucratic set-up involving red-tapism.
    29. An order refusing to set aside abetment is not a decree within the meaning of Section 2(2). The order, however, has been made appealable. But neither second appeal nor Letters Patent Appeal is maintainable against such an order.
       
  9. Nature of inquiry

    A personal inquiry dies with the death of the person (acito personalis moritur cum persona.) This doctrine, however, operates in a limited class of actions ex delicto, discussed above.

    A sues B for divorce. A dies. The cause of action does not survive to his representatives.

    See also Melepurath v. Evelyn Sequeria 1986 SCC 118 AIR 1986
    In the other actions, where the right to sue survives in spite of the death of the person, the suit does not abate. Hence, whenever a party to suit dies, the first question to be decided is as to whether the right to sue survives or not. If the right is held to be a personal right which extinguishes with the death of the person concerned and does not devolve on the legal representatives, there is an end to the suit. But if the right to sue survives against the legal representatives of the plaintiff, the suit can continue.

    In M.Veerappa v. Evelyn Sequeria, the Supreme Court rightly stated:
    If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract then such part of the claim as founded entirely on contract then the suit has to proceed to trail in its entirety and be adjudicated upon.

    In Melepurath Sankunni v. Thekittil Geopalankutty, the Supreme Court held that where a suit for defamation is dismissed and the plaintiff files an appeal, the plaintiff-appellant seeks to enforce his right to sue for damages against the defendant. The right to sue, therefore, does not survive on the death of the plaintiff. But where such suit is decreed, even on the death of the plaintiff, the legal representatives are entitled to continue the appeal since the question relates to benefit or determinant to the estate of the deceased. In such case, the cause of action merges with the decree.
     
  10. Interpretation

    Provisions of Order 22 CPC are procedural and not penal in nature. They are designated to advance justice. Substantive rights of the parties cannot be defeated by strict adherence and rigid interpretation. On sufficient cause being shown, delay in bringing legal representatives of the deceased (plaintiff or defendant) can be brought by conditioning delay or setting aside abatement.
     
  11. Suit against dead person

    No suit can be filled against a dead person. Such a suit is non est and has no legal effect. Likewise, a decree passed against a dead man is a nullity. But where a suit is filled against a dead person by the plaintiff without knowledge of such death, on the application by the plaintiff, the court may permit the legal representatives of the defendant to be brought on record. On such impleadment, the suit shall be deemed to have been instituted on the day the plaint was presented. The court’s satisfaction breathes life into the suit.
     
  12. Procedure where there is no legal representative

    Rule 4-A has been added by the Amendment Act of 1976. It lays down the procedure where there is no legal representative of a party who has died during the pendency of the suit or a legal representative is not found. The underlying object of this provision is that the other side should not suffer because of the absence of the legal representative of the deceased party.
     
  13. Partial abatement

    An abatement of suit may be total or partial. If the entire suit is founded on tort or on personal action, the suit would debate as a whole on the death of the plaintiff or the defendant, as the case may be. But if the action is founded partly on tort and partly on contract, the claim relating to tort will abate whereas the claim relating to contract will survive.

    Thus, if A files a suit against B, a trustee under Section 92 of the Code for his removal as also for settlement of scheme and B dies during the pendency of the suit; the suit will abate as regard his removal, but it can be continued as regard settlement of scheme.

(II) Marriage Of The Party : Rule-7

The marriage of a female plaintiff or defendant shall not cause the suit to abate. Where the decree is passed against a female defendant it may be executed against her alone. A decree in a favour of or against a wife, where the husband is legally entitled to the subject-matter of the decree or is liable for the debt of his wife may, with the permission of the court, be executed by or against him.

(III) Insolvency Of Party: Rule 8

  1. Insolvency of plaintiff

    The insolvency of plaintiff shall not cause the suit to abate and can be continued by his Assignee or Receiver for the benefit of his creditors. But if the Assignee or Receiver declines to continue the suit, or to give security for costs, as ordered by the court, the court may, on the application of the defendant, dismiss the suit on the ground of the plaintiff’s insolvency. The court may also award the defendant costs for defending the suit, to be paid as a debt against the plaintiff’s estate.
     
  2. Insolvency of defendant

    Rule 8 does not apply where the defendant becomes an insolvent. In such cases, the court may stay the suit or proceeding pending against the defendant who has been adjudged an insolvent. Rule 10 will also apply in those cases and a receiver will become a representative of the defendant debtor.

(IV) Devolution Of Interest : Rule 10

Rule to enacts that if, during the pending of the suit, any interest in the suit has passed from the plaintiff or defendant to any other person, the suit may with the leave of the court be continued by or against the person in who favour such interest is created.

Rule 10 is such is based on a principle that the trial of a suit cannot be brought to an end merely because the interest of a party in the subject-matter of the suit has devolved upon another during the pendency of the suit, but the suit may be continued against the person acquiring interest with the leave of the court. 

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