This article has been written by Suhana, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles and has been edited by Oishika Banerji (Team Lawsikho).
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
Order 22 of CPC,1908 talks about the provision related to death, marriage and insolvency of parties. Under this order of CPC, in case of death marriage and insolvency of parties, what will happen to the suit of parties, what are the remedies available and what is the procedure to continue the suits, are discussed in this article. There are 12 rules under this Order .Rule 1 to 6,9 and 10A talks about the death of parties, Rule 7 talks about marriage and Rule 8 about the insolvency of parties.
Death of parties
Under Rules 1 to 6, 9 and Rule 10A , the concept related to death of parties are mentioned and discussed. When one of the parties to a suit dies, either the defendant or the plaintiff, the first question to arise is whether the right to sue survives or not. If the right to sue does not survive then the suit will be disposed of but in case it does survive then the suit will continue (Rule 1).
A brief discussion on death of parties
- In cases where the only plaintiff in a suit dies and the right to sue survives to the legal heirs or representatives of the deceased plaintiff, then the suit can be continued by his legal representatives and heirs after filling an application before the court.
- But if the right to sue does not survive then the suit can be dismissed by the court’s order. In case where the prescribed application is not filed within the period defined in the Limitation Act, 1963 (90 days), the matter shall be over. However, one can file an application for setting aside the order within prescribed limitations.
- Where there are more than one plaintiffs and one of them dies and the right to sue survives to the surviving plaintiff or plaintiffs alone then the court will make a statement regarding the death of the plaintiff and proceed with the suit.
- Where within the time prescribed or limited by law, no application is made then the suit shall abate as far as the right of the deceased plaintiff relates.
- Where the death of the plaintiff takes place before the judgement and after the trial of the suit, the suit shall not abate and the judgement shall have the same force and effect as if it had been pronounced before the death took place.
No suit shall be filed against a dead person. Such suit shall have non legal effect, and such type of suit is non est means absent or a defence by way denial of a deed. But in cases where the plaintiff was unaware of the death of the defendant then he may file an application to make the legal heirs or defendant party to the suit, the court may permit to call upon the legal heirs or defendant as a party on record. After that the suit shall be deemed as having been filed on the day the plaint was presented . The court’s satisfaction breathes life into the suit. The same has been opined in the case of Karuppaswamy vs. C. Ramamurthy (1993).
Death of defendant
Where there are more than one defendants in a suit and one of them dies, the right to sue survives to the surviving defendants only. The court shall proceed with the suit to the effect of the surviving defendant.
In cases where only one defendant is in suit and he dies and the right to sue survives, then it can be continued against the legal heirs or legal representative of the deceased defendant. Where the plaintiff in the suit ignorant of the death of defendant and unable to make an application for the amendments in the legal heirs of deceased defendant within prescribed time and suit dismissed by the order of court, in this case the plaintiff may make an application to setting aside the order of abatement within the time prescribed under Limitation Act, 1963.
Legal representatives of deceased defendants may make any defence appropriate to his character as legal representative of the deceased. Where there is no application made within the time prescribed under the Limitation Act,1963 (90 days), the suit shall abate against the deceased defendant. Where the defendant dies before judgement and after the trial of the suit there shall be no abatement by reason of the death of the defendant and the judgement shall have the same force and effect as if it had been pronounced before the death took place.
In the case of Balwant singh(dead) vs. Jagdish Singh ( 2010), the court of law had read down the principal for not filing the application within prescribed time. If the sufficient cause for not making an application is not proved then the application for setting aside the order has to be dismissed on that ground. If the sufficient is shown then the court has discretionary power which indicates that a court may agree to accept a late appeal or application. The word sufficient cause is defined under Section 5 of Limitation Act, 1963 .
Duty of pleader : Rule 10A
The term “pleader” signifies a lawyer who pleads cases before the court. Order 22 Rule 10A inserted by the Amendment Act of 1976 defined the obligation of the pleader towards his client. In cases where the client dies, it is the duty of the pleader to convey the message of the death of his client to the court. Upon the death of a client, the contract between the pleader and client comes to an end. This provision is made therefore to impose an obligation on the pleader to inform the court about the death of his client. The court therefore gives notice of such death to the other party.
Provision related to marriage of party
The marriage of a female plaintiff or defendant shall not cause the suit to dismiss. The suit may proceed with judgement and when a decree is passed against a female defendant, then it may be executed against her only. In cases where the husband of a female defendant is liable for her wife’s debts then in this case the decree can be executed against him, with the permission of court. The rule related to marriage of the party defined under Rule 7.
Provisions related to insolvency of party
Insolvency of the party, defined under Rule 8 of Order 22 of CPC. According to this Rule, where the plaintiff becomes insolvent, the suit shall not abate and can be continued by his receiver or assignee for the benefit of his creditors.
But in case where the assignee and receiver declined to continue the suit or failed to pay the security cost, as ordered by the court, the court may on the application of defendant may dismiss the suit on the ground of plaintiff insolvency and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff’s estate.
Rule 8, doesn’t apply in case of insolvency of the defendant; where the defendant becomes insolvent, the court may stay the suit or proceeding pending against the defendant.
Effect of abatement or dismissal
Under Rule 9 of CPC, where the plaintiff/defendant suit is abated or dismissed due to non-appearance of legal representative or heirs of the deceased parties, no fresh suit can be filed on the same cause of action. The only remedy available to the parties or person claiming to be legal representative of the parties is to file an application for setting aside the dismissed order under the prescribed time period. If it is proven that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal upon such terms as to cost or without cost.
Assignment procedure before final order in suit
Under Rule 10 of Order 22 of CPC, the procedure related to assignment of interest is discussed. According to this Rule, when either of the parties to the suit transfer his or her interest to another, then the suit may with the permission of the court be continued against that person. According to this the trial of suit cannot come to end only by way of transfer of interest of the parties to another, but the suit may continue against that person in whose favour assignment or interest is made with the order of court.
Rule 11 and 12 CPC
Rule 11 talks about the application of order to appeals, according to this the word ‘plaintiff’ shall be held to include an appellant and the word ‘defendant’ a respondent, the suit an appeal.
Rule 12 about the application of order to proceed according to these rules 3, 4 and 8 shall not be applicable to proceedings in execution of a decree or order. Rule 3 & 4 Talks about procedure of death of plaintiff or defendant and Rule 8 insolvency of party.
According to Melepurath vs. Evelyn Sequeira (1986), on the death of parties where the right to sue is survived then the suit shall not abate. Whenever a party to suit dies the first issue which arises is that if the right to sue is survive or not. If the right to sue survives against the legal representative then the suit can continue.
In cases where the right to sue is held to be personal right which comes to end with the death of the parties to the suit and does not transfer to the legal representative then the suit shall abate.
Conclusion
The provision of death marriage and insolvency of parties are defined under Order 22 of CPC; it contains 12 rules. According to this order, when the parties to the suit, and/or one of them dies then the question arises whether the right to sue survives or not. If the right to sue survives then the court shall on the application made by the defendant’s or plaintiff’s legal representative or heirs on behalf of deceased parties to be made a party and shall proceed with the suit. The determination of question as to the legal representative of a deceased defendant or a deceased plaintiff such question shall be determined by the court. In case of marriage of a female party the suit shall not abate and may proceed with judgement and where the decree is passed against the female defendant it may be executed only against her. Where the husband of the defendant is by law liable for the debts of his wife then decree may, with the permission of the court, be executed against the husband also. In case of insolvency of the plaintiff, the suit may not abate but if the assignee or receiver might maintain it for the benefit of the creditors. In cases where assignee or receiver failed to continue the suit or give security within the time period, the defendant may apply for dismissal of suit on the ground of the plaintiff’s insolvency.
References
- https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/death-marriage-and-insolvency-of-parties/?amp=1&_gsa=1&_js_v=a9&usqp=mq331AQIUAKwASCAAgM%3D#amp_tf=From%20%251%24s&aoh=16846482893400&referrer=https%3A%2F%2Fwww.google.com&share=https%3A%2F%2Fblog.ipleaders.in%2Fdeath-marriage-and-insolvency-of-parties%2F.
- https://www.indiacode.nic.in/handle/123456789/2191?sam_handle=123456789/1362#
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