DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

By | April 17, 2017

Death

  1. Where a party to a suit dies or gets married or becomes an insolvent or where he assigns his rights under the suit, there is a creation, devolution and assignment of interest in cases of suits and appeals.
  2. However, there is no such creation, devolution or assignment of interest in cases of execution of a decree or order. (Rule 12- Nothing in Rules 3, 4 and 8 shall apply to execution of a decree or order)
  3. Order 22 deals with the same.
  4. Where the right to sue survives, there shall be no abatement of the suit where a party dies. (Rule 1)
  5. Where the sole plaintiff dies, his right to sue shall devolve on to his legal representatives provided the right to sue survives.
  6. Where there are several plaintiffs and one of them dies, the court shall make a record of the same and proceed with the remaining plaintiffs, provided the right to sue survives. (Rule 2)
  7. In cases where the sole plaintiff dies and the right to sue survives (point 5) or where one out of several plaintiffs dies and the right to sue does not survive as regards the surviving plaintiffs, the legal representative of the deceased may make an application to the court within the prescribed period of 90 days, the court shall cause the legal representative to be made party to the suit. (Rule 3)
  8. The suit shall abate where the application is not made within the given period of time.
  9. In such a case, the defendant may apply to the court to award him costs from the estate of the deceased plaintiff.
  10. However, there shall be no abatement of suit after completion of the hearing, in cases where the judgment is yet to be pronounced. (Rule 6)
  11. Where one of several defendants dies and the right to sue survives, the court shall make a record of the same and proceed with the suit. (Rule 2)
  12. Where a sole defendant dies and the right to sue survives or where one of several defendant dies and the right to sue does not survive as regards the surviving defendants, on an application made by the legal representatives of the defendant, within the prescribed period of 90 days, such legal representatives shall be made a party to the suit as defendants. (Rule 4)
  13. It would seem on a reading of the provision, that even the plaintiff may make an application to the court for substitution of the deceased defendant by the legal representatives of such defendant.
  14. However, the plaintiff shall be exempted from making an application substituting the legal representatives of the defendant where such defendant has failed to file a written statement or where he has failed to appear before the court after filing such statement.
  15. In such cases, the court may pronounce judgment against the defendant, notwithstanding his death. Such judgment shall have the same effect as it would have had, had the defendant not died.
  16. Where the plaintiff could not make an application substituting the legal representatives of the defendant within the prescribed time period as he was unaware of the defendant’s death, he can make an application after the expiry of the prescribed period of time stating that he was ignorant of the defendant’s death and that it was sufficient cause for not making the application.
  17. The court shall then consider the application and have due regard to the fact of ignorance, if proved.
  18. The right to sue subsists till the cause of action subsists.
  19. However, where the action is personal that is where the relief sought is personal to the deceased person, the right to sue of the legal representatives does not arise.
  20. This is based on the maxim actio personalis moritur cum person which means ‘a personal action dies with the person’.
  21. For example, where a person is being sued for breach of contract of singing or other personal performance.
  22. As per Rule 5, any question as to determination of who is a legal representative shall be decided by the court.
  23. Where the question arises before the appellate court, it may direct the subordinate court to conduct such enquiry. It may even ask the subordinate court to send its findings, evidence, etc. and based on the same take a decision as regards the matter.
  24. Rule 5 however does not mention about any elaborate enquiry.
  25. Further, it is the duty of the pleader of the deceased party to inform the court as regards his death. (Rule 10-A)
  26. This rule has been inserted via amendment so that there is no hardship caused to the other party which is ignorant of the situation.
  27. Generally, the contract of a pleader ceases to exist where the party he represents dies. However, for the purposes of this provision, the contract between the pleader and the deceased party shall be deemed to subsist. This is done so as to cast an obligation on the pleader.
  28. Rule 4-A provides that where there is no legal representative, the court may on an application of any other party to the suit proceed with the suit without anyone representing the estate of the deceased or it may pass an order providing that the Administrator General or any officer of the court or any other officer represent the estate of the deceased.
  29. Thereafter, any judgment passed by the court shall affect the estate of the deceased in the same manner as it would have affected such estate where there was a personal representative of the deceased.
  30. However, before making such order, the court shall ensure that a notice of the same is sent out to persons who are interested in the estate of the deceased.
  31. The court shall also ensure that the person so appointed by it is willing to represent the estate of the deceased and has no interest which is adverse to that of the deceased person.
  32. As per rule 9, where a suit abates, no fresh suit shall be brought on the same cause of action. No specific order is required in this regard as the suit abates automatically.
  33. However, the abatement may be set aside by an order where the plaintiff or such persons claiming to be legal representatives of the plaintiff apply to the court that they were prevented by sufficient cause from filing the suit.
  34. However, nothing shall bar a defence on the facts of the same cause of action in a later suit. Thus, the abatement of the suit does not operate as res judicata. (check)
  35. An application under Rule 9 must be filed within such time period as specified under S.5 of the Limitation Act.
  36. No suit can be filed against a dead person. Such a suit filed is non est.
  37. Similarly, no decree can be passed against a dead person.
  38. Where a suit is filed by a plaintiff who is ignorant of the death of such person, on the application of the plaintiff, the court may proceed to bring the legal representatives of the deceased on record.
  39. Such a suit shall be deemed to have been instituted on the day the plaint was presented.
  40. Where in a proceeding, one of several plaintiffs/defendants dies and his legal representative is already on record in a different capacity, he should also be described as the legal representative of the deceased. However, failure to do so will not abate the proceeding.
  41. Where a joint and indivisible decree is passed by a subordinate court in favour of several plaintiffs and one or more such plaintiffs dies, in such case if a defendant fails to bring to record the legal representatives of the deceased plaintiff(s), the right to appeal shall abate against all the defendants.
  42. A suit filed in a representative capacity does not abate on the death of one or more of the plaintiffs.
  43. Similarly, a suit filed by the Karta of an HUF may be continued after his death by the succeeding Karta.
  44. The suit will not abate on the death of an unnecessary or proforma defendant.
  45. The order refusing to set aside abatement is an appealable order and not a decree.
  46. Thus, even though the order may be appealed against, no second appeal or letters patent appeal shall lie in such case.

 

Marriage (Rule 7)

  1. Where a female plaintiff or defendant gets married, the suit shall not abate.
  2. It shall be proceeded till the judgment is given and where the decree is against her, it shall be executed against her alone.
  3. Where the husband is by law liable to pay the debts of the wife, a decree passed against the wife may with the permission of the court be executed against the husband as well.
  4. Where a decree is passed in favour of the wife and the husband is entitled to the subject matter of the same, he may make an application to the court in this regard. The decree may then be executed in favour of the husband as well with the permission of the court.

 

Insolvency (Rule 8)

  1. Where the plaintiff becomes insolvent and the receiver or assignee might want to maintain the suit for the benefit of the creditors of the plaintiff, the suit shall not abate except where the assignee or receiver declines to continue the suit or in cases where the court directs the assignee or receiver to pay security for costs and the assignee or receiver declines to or neglects to pay the same.
  2. Where the assignee or receiver declines to proceed with the suit or fails to pay security for the costs within the prescribed time period, the defendant may make an application to the court for dismissal of the suit.
  3. The court may thereafter order that costs be paid to the defendant and the same be deemed to be a debt against the plaintiff’s estate.
  4. This rule is not applicable to the insolvency of a defendant. In such cases, the court may stay the suit or proceedings pending against such defendant.
  5. Rule 9 also states that where a suit abates, the assignee and receiver in cases where the plaintiff becomes insolvent may make an application to the court to set aside such abatement. (Order not necessary, abatement is automatic)
  6. The assignee or receiver must show that there was sufficient cause for not continuing with the suit and the Court if satisfied with the same may pass an order in this regard.
  7. The application must be filed within such time period as is prescribed by S.5 of the Limitation Act.
  8. Nothing shall however bar a defence on the facts of the same cause of action in a later suit.

 

Assignment in other cases-

In any other case where an interest is assigned or created or devolved, the suit may be proceeded by or against such other person with the permission of the court.

Where there is attachment of a decree pending appeal, the person who has asked for such an attachment will be deemed to have an interest as per the provisions of this section.

Submitted By –

Ankit

(Editor @ Legal Bites)

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