Generally when a civil suit is instituted, it goes as it meant to be with two opposite parties and it comes to an end with the judgement followed by the decree of the court but what happens if contingencies of suit such as death, marriage or insolvency of parties occur? It obviously leads to one major consequence that is the pendency of the suit since it has somehow been struck between the step which is institution and passing of judgement.
Such a situation calls for something which solves the problem of pendency of the suit and same can be dealt with by the creation, assignment or devolution of the interests of the parties. Though the procedure of creation, assignment and devolution of interests is exhaustive under Order XXII of the Code of Civil Procedure, 1908, the same shall be considered to meet the ends of justice.[1]
In the case of death of the party in the suit the first and foremost question which is considered as the test for creation of any interest thereof is the survival of right to sue. It should not be gone with the death of the party. If it exists, the suit will be continued and otherwise the matter will have no legs to stand. These provisions have been provided under Rule 1-6, 9 and 10-A of Order XXII of the Code. There are few circumstances of death of parties which have the consequences taken by the court thereby.
The first one deals with the case where there are co-plaintiff or co-defendants and the right to suit has survived. Where one of the several plaintiffs die and the right to sue survives in favour of the surviving plaintiff or plaintiffs alone or where one of the several defendants die and the right to sue survives against the surviving defendant or defendants alone in such a case the court shall record such fact and proceed with the suit.
On the contrary where the right to sue does not survive where one of the several plaintiff dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or even where the sole surviving plaintiff dies and the right to sue survives in such case, on an application being made by legal representatives, the court shall make the legal representatives of the deceased party a party and proceed with the suit. While if no such application is made within the prescribed period, the suit shall abate so far as the deceased plaintiff is concerned. In such circumstances, if an application is made by the defendant, the court shall award him the costs which he may have incurred in defending the suit from estate of the deceased plaintiff.
Similarly, in a case where one of the several defendant dies and the right to sue does not survive against surviving defendant or defendants alone or where a sole surviving defendant dies and the right to due survives, in such a case on an application being made by the legal representatives, the court shall make the legal representative of the deceased defendant a party and proceed with the suit. If no such application is made within prescribed period, the suit shall abate against the deceased defendant. But it is also discretion of the court to exempt a plaintiff from substituting the legal representatives’ of a non-contesting or pro-forma defendant and pronounce the judgement notwithstanding the death of such defendant. In a case where plaintiff had no knowledge or was ignorant of the death of the defendant and as a consequence of it could not make an application for the substitution of legal representative of such defendant within the prescribed period and the suit is abated, the plaintiff can thereby may make an application for such abatement within the prescribed period and in considering the said application , the court shall have due regard to the fact of such ignorance of the plaintiff since the court has to determine the interests of a deceased person also with due care and caution.
In a situation where either party dies between the conclusion of hearing and the pronouncement of judgement, it is the most confusing and tough contingency solution of which has been provided under Rule 6 of Order XXII. In such a situation the suit shall not abate, regardless of the survival of the right to sue and cause of action. But in a situation where a suit is instituted against the person who is already deceased, it will be null and void, and have no legal effect. In fact, a decree passed against a dead man is a nullity.[2]
The marriage of a party has no substantial effect on the suit but in case a decree is executed against a female who is married, it shall be made executed against her only. While it has been provided under Rule 7 of Order XXII that a decree in 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.
Lastly, in case of insolvency of parties there are two different effects in case of plaintiff and defendant, respectively. A plaintiff’s insolvency has no effects of suit to abate since his assignee or receiver may continue the suit for their own benefit of creditors but in case they decline to continue it, the defendant may make an application for the dismissal of suit on insolvency of plaintiff. However, insolvency of defendant can cause either the stay of suits or the court may even proceed with the suit. But is to be kept in mind that such insolvency has been occurred after the institution of the suit to the party otherwise, it will take the form of a suit by the pauper which will have different aspects and effects altogether.
[1] Sardar Amarjeet Singh v. Pramod Gupta AIR 2003 SC 2588
[2] Amba Bai v. Gopal AIR 2001 SC 2003
