Death, Marriage and Insolvency of Parties under the Code of Civil Procedure, 1908

The Code of Civil Procedure (CPC), 1908, is the cornerstone of civil litigation in India, governing the conduct of civil cases. It provides a comprehensive procedural framework to ensure justice is administered fairly and efficiently. Among the various provisions of the CPC, Order XXII holds particular significance as it addresses the legal implications of the death, marriage or insolvency of parties involved in a civil suit. These eventualities can complicate the litigation process, potentially leading to delays, abatement or even the dismissal of suits. 

Death of a Party

The death of a party during the pendency of a suit raises critical questions about the continuation of the legal proceedings. Order XXII of the CPC specifically deals with the situations arising from the death of a plaintiff or defendant and the conditions under which a suit can be continued or must abate.

Death of Plaintiff

When a plaintiff dies during the course of a suit, the right to sue plays a pivotal role in determining whether the suit can continue. If the right to sue survives, the legal representatives of the deceased plaintiff may be substituted in place of the deceased to carry on the litigation. This substitution must occur within a specified time frame to prevent the abatement of the suit.

Rule 1 and 2 of Order XXII clearly stipulate that if there are multiple plaintiffs and one of them dies, the suit shall continue with the remaining plaintiffs if the right to sue survives. However, if the right to sue does not survive solely with the remaining plaintiffs, the legal representatives of the deceased plaintiff must be brought on record. Failure to substitute the legal representatives within the prescribed time frame, generally 90 days, results in the abatement of the suit concerning the deceased plaintiff.

In the case of Radhu Napit v. Tarapdo Napit, the Jharkhand High Court dealt with a situation where one of the defendants in a partition suit died. The court held that the death of a party does not necessarily lead to the abatement of the suit if the right to sue survives. The court emphasised the necessity of substituting the legal representatives to avoid abatement.

Death of Defendant

The death of a defendant poses similar challenges. Rule 4 of Order XXII outlines the procedure to be followed when a defendant dies during the pendency of a suit. If there are multiple defendants and one of them dies and if the right to sue does not survive against the remaining defendants alone, the legal representatives of the deceased defendant must be substituted to continue the suit.

If the plaintiff fails to apply for the substitution of the legal representatives within the prescribed period, the suit shall abate concerning the deceased defendant. However, the court may exempt the plaintiff from substituting the legal representatives of a non-contesting or pro forma defendant, allowing the suit to proceed without them.

In Jitendra Ballav Burdhan vs. Dhirendranath Burdan, the Orissa High Court addressed the issue of substitution of legal representatives in the event of a defendant’s death during the final decree proceedings in a partition suit. The court ruled that the death of a defendant does not abate the suit if the right to sue survives, reinforcing the importance of timely substitution to prevent abatement.

Survival of the Right to Sue

The principle that guides the courts in these situations is the survival of the right to sue. If the cause of action persists despite the death of a party, the suit can continue with the substitution of the deceased party’s legal representatives. This principle is enshrined in the maxim “Actio personalis moritur cum persona,” which translates to “a personal right of action dies with the person.” However, there are exceptions to this rule, especially in cases involving contractual obligations, tort claims or other causes of action that survive the death of a party.

The survival of the right to sue is particularly significant in cases where the deceased party’s legal representatives have a vested interest in the outcome of the suit. In such cases, the courts are inclined to allow the substitution of legal representatives to ensure that the suit is adjudicated on its merits rather than being dismissed due to procedural lapses.

Marriage of a Party

Marriage, as a legal event, generally does not affect the continuation of a civil suit. However, there are specific provisions under the CPC that address the potential legal implications of marriage, particularly concerning the execution of decrees and the rights of married women.

Effect of Marriage on the Suit

Under Order XXII, Rule 7 of the CPC, the marriage of a female party to a suit does not affect the continuation of the suit. The suit shall proceed as if the marriage had not taken place. This provision ensures that marital status does not create procedural hurdles in the adjudication of civil disputes.

However, when a decree is passed in favour of or against a married woman, special considerations come into play. The court may permit the decree to be executed against her husband if he is legally entitled to the subject matter of the decree or liable for the debt incurred by his wife. This provision recognises the potential impact of marriage on the financial and legal obligations of the parties involved.

For example, if a decree is executed against a married woman for the payment of a debt and her husband is legally liable for that debt, the court may allow the decree to be executed against the husband. This provision is particularly relevant in cases involving joint family properties, dowry claims or financial obligations arising from the marriage.

Insolvency of a Party

Insolvency, as a legal condition, can significantly affect the continuation of a civil suit. The CPC provides detailed provisions under Order XXII, Rule 8, to address the implications of insolvency on the litigation process.

Insolvency of Plaintiff

When a plaintiff becomes insolvent during the pendency of a suit, the court must consider whether the suit can continue for the benefit of the creditors. The key provisions are as follows:

1. Continuation of the Suit: If the plaintiff becomes insolvent, the suit does not abate automatically. Instead, the assignee or receiver appointed under the insolvency laws may continue the suit for the benefit of the creditors. This provision ensures that the creditors’ interests are protected and the suit can be adjudicated on its merits.
2. Role of the Assignee or Receiver: The assignee or receiver, who is responsible for managing the insolvent estate, may apply to the court to be substituted in place of the insolvent plaintiff. The court may require the assignee or receiver to provide security for the costs of the suit. If the assignee or receiver fails to provide the security within the prescribed time, the court may dismiss the suit, leading to its abatement.
3. Application by the Defendant: If the assignee or receiver declines to continue the suit or fails to provide the necessary security, the defendant may apply to the court for the dismissal of the suit. The court may also order the defendant to be paid costs from the estate of the insolvent plaintiff.
4. Effect of Insolvency on Decrees: In cases where a decree has already been passed in favour of an insolvent plaintiff, the decree may still be executed by the assignee or receiver. The court may direct that the proceeds of the decree be applied for the benefit of the creditors, subject to any legal obligations arising from the insolvency.

Insolvency of Defendant

The insolvency of a defendant does not automatically lead to the abatement of a suit. However, the court may stay the proceedings if it deems it necessary to protect the interests of the insolvent defendant’s creditors. The following points are crucial:

1. Stay of Proceedings: If the defendant becomes insolvent, the court may stay the proceedings to allow the insolvency process to take its course. The stay is typically temporary, allowing the assignee or receiver to assess the situation and determine whether the suit should continue.
2. Role of the Assignee or Receiver: Similar to the plaintiff’s insolvency, the assignee or receiver may apply to the court to be substituted in place of the insolvent defendant. The court may require the assignee or receiver to provide security for the costs, failing which the suit may proceed against the defendant’s estate.
3. Impact on Execution of Decrees: If a decree has been passed against an insolvent defendant, the execution of the decree may be stayed by the court to allow the insolvency process to unfold. The court may direct that the proceeds from the execution be applied for the benefit of the creditors, ensuring that the insolvent estate is distributed equitably.

Abatement of Suit

Abatement refers to the discontinuation or cessation of a legal proceeding due to specific circumstances, such as the death of a party, insolvency or other factors that prevent the continuation of the suit. The concept of abatement is closely linked to the survival of the right to sue, as well as the procedural requirements for substitution.

Grounds for Abatement

1. Death of a Party: As discussed earlier, the death of a party can lead to the abatement of the suit if the right to sue does not survive or if the legal representatives are not substituted within the prescribed time frame.
2. Insolvency of a Party: The insolvency of a party may lead to abatement if the assignee or receiver declines to continue the suit or fails to provide the required security for costs.
3. Non-Substitution of Legal Representatives: Failure to substitute legal representatives within the prescribed time limit, typically 90 days, can result in the abatement of the suit.
4. Other Grounds: Other grounds for abatement may include defects in the parties, lack of jurisdiction or the dissolution of a corporation involved in the suit.

Consequences of Abatement

The abatement of a suit has significant legal consequences. When a suit abates, it effectively comes to an end concerning the deceased or insolvent party. The legal proceedings are discontinued and any further action in the suit is void unless the abatement is set aside.

1. Setting Aside Abatement: The CPC provides a mechanism for setting aside the abatement of a suit. The legal representatives of the deceased party or the assignee or receiver in the case of insolvency, may apply to the court to set aside the abatement. The application must be made within the prescribed time limit and the applicant must show reasonable cause for the delay in substitution.
2. Impact on the Suit: If the abatement is set aside, the suit is revived and can continue from where it was left off. However, if the abatement is not set aside, the suit remains discontinued concerning the deceased or insolvent party and the proceedings may only continue against the remaining parties.

Case Laws Illustrating Abatement

Several landmark judgements have shaped the understanding of abatement and its implications in civil litigation. These cases highlight the courts’ approach to the procedural intricacies of abatement and the importance of timely action by the parties involved.

1. Nurani Jamal vs. Naram Srinivasa Rao: This case involved the application of the maxim “Actio personalis moritur cum persona” and the survival of the right to sue. The court recognised that the right to sue survives in cases where the cause of action is not strictly personal, such as claims involving property or contractual obligations.
2. Elliott v. Cline: In this landmark judgement, the court observed that the cause of action for an injunction survives the death of a party. However, if the cause of action is entirely personal, such as in cases of defamation or personal injury, the right to sue abates with the death of the party.
3. Cleymond v. Vincent (1523): This early English case is one of the first to apply the maxim “Actio personalis moritur cum persona” in the context of defamation. The court held that the right to sue for defamation does not survive the death of the plaintiff, establishing a precedent that has influenced subsequent case law.

Conclusion

The death, marriage and insolvency of parties in a civil suit present complex challenges that require careful navigation of the procedural rules set forth in the Code of Civil Procedure, 1908. Order XXII of the CPC provides a robust framework to address these contingencies, ensuring that suits can be continued, abated or revived based on the survival of the right to sue and other relevant considerations. The provisions concerning the substitution of legal representatives, the role of assignees or receivers in cases of insolvency and the impact of marriage on legal proceedings reflect the CPC’s commitment to fair and just adjudication.