Dr.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

CIVIL PROCEDURE CODE

THE CONSEQUENCES OF THE DEATH OF PARTY(S) ON A SUIT

SUBMITTED TO: SUBMITTED BY:

Dr. VIPUL VINOD SHIVANSH SHARMA
ASSISTANT PROFESSOR Enrollment No. - 220101143
(LAW) B.A. LL.B. (Hons.)
Dr. Ram Manohar Lohiya National Law University 4th Semester, Section ‘B’

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 ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher, Dr. Vipul Vinod, for allowing me to do this
project. I would also like to thank him for his excellent guidance, monitoring, and constant encouragement
throughout this project. Without his motivation, inspiration, and efforts, I would not have been able to do
this project.

I also take this opportunity to express profound gratitude to my parents and mentors for providing me with
the morals and support to complete this task through various stages. I am also obliged to the Librarian of
Dr. Ram Manohar Lohiya National Law University for providing timely e-library access to me.

Lastly, I would also like to thank my family, friends, and colleagues for their constant encouragement,
without which this project would not have been possible.

-SHIVANSH SHARMA

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 DECLARATION

I at this moment declare that my project titled EFFECT OF DEATH OF PARTY(S) ON SUIT submitted
to Dr. Ram Manohar Lohiya National Law University, Lucknow is a record of original work done by me
under the guidance of Dr. VIPUL VINOD, Assistant Professor, Law at Dr. Ram Manohar Lohiya
National Law University and this project work is submitted in the partial fulfillment of the requirements
for the award of the degree of B.A. LLB.(Hons.) the project has not formed the basis for awarding any
degree, associate ship, fellowship, or other similar titles.

SHIVANSH SHARMA

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 TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................................ 5

PROCEDURE IN CASE OF DEATH OF PARTIES UNDER THE CODE OF CIVIL

PROCEDURE, 1908 .................................................................................................................................... 6

ORDER XXII, RULES 1 TO 6, 9 AND 10-A ............................................................................................ 8

CASE LAWS .............................................................................................................................................. 10

CONCLUSION........................................................................................................................................... 12

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 INTRODUCTION

There are three distinct concepts: insolvency of parties, marriage, and death. The Civil Procedure Code of
1908 discusses and makes reference to these. The relevant headings address what happens in instances of
death, marriage, and insolvency of parties. For each of these three situations, there are distinct provisions.
In general, when one party passes away, the case does not end with their passing. Similar to this, all of the
provisions in this project are examined in accordance with the Code of Civil Procedure, and pertinent case
laws are cited.

Meaning of the term “Right to sue”

The words “right to sue” ordinarily mean the right to seek relief by means of legal proceedings. Generally,
the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief
by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is
a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.[i]

The expression is not really defined in CPC. Right to sue, simply put, is nothing but right to seek relief.
The general rule is that all rights of action and all demands whatsoever, existing in favour of or against a
person at the time of his death, survive to or against Legal Representatives[ii]. The right to sue is like that
maxim “Actio personalis moritur cum persona.” A personal right of action dies with the death of that person, is
a deviation which derived from this Latin maxim.

To check when and how a right to sue survives regardless of the death of either party, there is a simple
experiment for that. There are certain cases where the plaintiff mostly sues a claim which is associated with or
which vests in their individuality. A suit for damages is one such category for that. If in a case where the
plaintiff died during the pendency of the suit for damages, the right to sue, which in other words can also be
termed as a right to seek relief, will not survive, but if the plaintiff succeeds in getting, a decree for damages
and dies during the pendency of his opponent’s appeal, the right will survive to his or her legal representatives.

In a case in which the survival of the right to sue is there, the suit does not abate on the death of a party, but the
substitution to his or her legal heirs becomes necessary within a period of 90 days. This is because the
surviving right is now vested in the legal heirs. So long as a right an individual has, it does not survive the
death of that person. The common or, say, the general rule is that all causes of action and all demands which
are existing in favor or against a person at the time of his or her death survive to or against his or her legal
representatives. This principle is also mentioned under the succession act as well, but in that, there is only one
exception to it which says that rights intimately connected with the individuality of the deceased will not
survive based on this maxim Actio personalis moritur cum personal- a right of action dies with the death of the
person.
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 PROCEDURE IN CASE OF DEATH OF PARTIES UNDER THE CODE OF CIVIL
PROCEDURE, 1908

During the proceeding, if one of the parties dies or what will happen when the contingencies of the suit,
like death, marriage, or insolvency of parties, occur?

What will happen in case of the death of one of the parties? Or what procedure should be followed in this
type of situation? The answers to all these kinds of questions are resolved under Order XXII of the Code
of Civil Procedure, 1908. In that kind of situation, the fundamental question which is considered as the
test for the creation of any interest thereof is the survival of the right to sue. The suit should not be gone
with the death of any of the parties. If the suit is continued, the matter will further have no legs to stand.
These provisions are explicitly provided under Rules 1-6, 9, and 10-A of the order XXII of the code.

Rule one clearly specified that the death plaintiff or defendant should not lead suit to abate if the right to
sue has survived. Similarly, provisions are very clear in other situations like of death of plaintiff(s) or
defendant(s) only condition is that the right to sue must survive. Wondering about the question of the right
to sue; it is nowhere mentioned in C.P.C., so this should be mean same as that of general meaning.

In a situation or a case where the right to sue does not survive, then the suit will automatically come to an
end. The fundamental part of an important part that affects the abatement is the right to sue after the death
of either party because after the death of the party, if the right to sue survives, then the suit can be
continued.

The general rule in this is that an action or suit can be prosecuted by and against only living parties. If in a
situation where the person against whom a personal action is brought dies before suit papers naming that
person as the defendant, then in such a situation, the suit papers can be changed by substituting the
deceased’s a personal representative or legal representative.

Enactments that set up legal procedures for revival seek to prevent the arbitrary cessation of a proceeding
where the cause of action survives and provide for the substitution of the personal representative or other
proper party and the continuation of the matter in that party’s name. In a situation where there is a death of
an important party, the action is abated till the deceased party’s state or legal representative has been
substituted.

A deceased party is not eligible to be a party to a legal proceeding, and on the death of either party, its
effect is to suspend the action as to the decedent until his or her legal representation is substituted as a
party. A deceased person cannot be a party to any legal proceeding.” while the death of a party does not

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abate a pending action but cases where the cause of action survives, though the effect of death is to
suspend the action as to the decedent until someone is substituted for the decedent as a party to a legal
proceeding. Till a person is properly substituted as a party after the action is suspended, any further
proceedings, in that case, are void as to the decedent.

Understanding the matter of abatement of an action by the death of a party, as well as the survival and
revival of the action, there is a complete difference between the cause of action and action. A cause of
action may survive though a particular action is based on whether it is abated by the death of a party or
not.

In legal terminology, abatement means elimination, cessation, or discontinuation. This is used widely in
several different contexts. Abatement is nothing, but it is the discontinuation of a judicial proceeding due
to some fact not affecting the merits of the controversy. The most common grounds for abatement are the
death of either party or the pendency of another suit. There are also other grounds for abatement of suits.
These grounds are defects of the parties like incapacity or misnomer, invalid jurisdiction of the court,
premature commencement of an action, dissolution of a corporation, and transfer of a party’s interest in
the lawsuit.

As we all know, there are always two parties involved, i.e., the plaintiff and the defendant. The party
which files a suit or initiates a lawsuit is known as the plaintiff, and the party against whom the action is
brought is known as the defendant. Laws relating to the concept of abatement differ from state to state, but
the plaintiff generally claims recovery against the defendant and monetary relief.

The ending before the actual time or, say, the premature ending of a suit is called an abatement. If the
reason for abatement is not clear in the pleading filed by the plaintiff, then the defendant can move to
abate the case. But if the defendant fails to claim for abatement, the defence will be waived. Court
considers a plea for abatement of an action before proclaiming a judgment, as the judgment on the plea
will affect the final decision of the court.

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 ORDER XXII, RULES 1 TO 6, 9 AND 10-A

Rule 2 of XXII of C.P.C talks about the procedure with regards to the death of one of the parties to the
suit. Wherein if one of the parties to a suit dies but the right to survives in favor of the other parties, be it
with regards to the plaintiffs or defendants, the court shall, in that case, take a record of such scenario and
proceed with the case and this is done because the suit might be presented before various courts and can
continue for years hence the record shall be maintained and track should be kept of that case. So,
basically, this provision allows the courts to continue with the proceedings of the suit in the same manner
even after the death of the party to the suit as it would have been before the death of that party.

Rule 3 of XXII C.P.C procedure about the substitution of the parties has been described. Sub-clause (1) to
this rule mentions that in a scenario wherein the sole plaintiff has died and the right to sue has survived,
then the legal representative of such party by an application to the court can be substituted, and the suit
can be continued further. Also, it mentions that where there is more than one plaintiff and because of the
death of one such plaintiff, the right to sue does not survive in respect of the other plaintiffs to the suit
than in that case also the legal representative of the deceased can continue with suit by substituting the
deceased but, an application has to be given to the courts for such issue. In sub-clause (2), the limitation
period to make such application as prescribed in the provision is within 90 days of the death of a such
party, be it the plaintiff or the defendant.

The parties can only be substituted if the courts are of the view that the legal representative has such
authority to substitute the deceased party. But in cases where no application has been made or is barred by
the law of limitation or the court has refused such application, then in that case, the suit shall be abated,
and further, the proceeding shall be stopped. And if the defendant files for the recovery of the cost of
litigating the case, then that can be adjusted from the assets of the deceased plaintiff.

With respect to Rule 4, the whole procedure is like that of substitution of the plaintiffs. Even the limitation
period is the same as that of Rule 3 for making such an application for replacing the parties. But one thing
to notice here is that this power is discretionary, and the courts can allow the plaintiff to not substitute
such a representative in a case where the court deems it fit where the deceased plaintiff forgot to file the
‘Written Statement.’ And here, the judgment can be decreed in favor of the plaintiff and will become
binding on the representative of the deceased defendant.

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Before the 1976 amendment to CPC this substitution of parties was not allowed, and after the
amendment Rule 4A was added. Here if the deceased had no legal heir or representative, then the court
had only two options. The first is that the remaining parties to the suit can file the application to proceed
with the suit even after the absence of the deceased party to the suit. The second is that an administrator
could be appointed by the courts, who may represent the estate of the deceased party. But here, that person
shall not have an interest adverse to the deceased party.

In cases where the determination of the legal representative of the deceased party is not certain, and there
is doubt in it, then in that case, the courts have the power to determine such a representative.

According to Rule 9, if the suit has been dismissed, then no fresh case can be brought for the same cause
of action. If the party to a suit dies and no right to sue survives, then in that case, neither relief can be
claimed, nor any legal action can be brought against that cause of action. In this case, the suit will be
abated. However, to set aside such an order of abatement, the legal representative of the plaintiff can make
an application to the court to set aside such an order and can commence a fresh but bona fide intention
should be shown, and it should be reasonable. However, this action is barred by the provision of Section.5
of the Limitation Act, 1963.

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 CASE LAWS

1) Radhu Napit v Tarapdo Napit1

• Facts
In the landmark case of the Hon’ble High Court of Jharkhand in a single Judge bench of
Justice Shree Chandrashekhar, he dismissed a writ petition which was filed against the
order of the trial judge, whereby petitioner’s application seeking abatement of partition suit
on the ground of death of one of the defendants was rejected.
• Issue
The fundamental question or say issue which arose before the court, in this case, was
whether the suit can be abated in case of death of either party or not?
• Held
The honourable high court in its judgement observed the Rule I of Order XXII of the Code
of Civil Procedure, 1908. Rule of 1 of CPC explicitly says that the suit cannot be abated on
the mere ground of the death of either party if the right to sue still survives. Rules 1, 2, and
4 of Order 22 of C.P.C. provides different procedures. These rules talk about different
situations like the death of a party, the death of one of several plaintiffs or defendants but
the survival of the right to sue, and the death of one of several defendants or sole
defendants only.
2) Nurani Jamal And Others v Naram Srinivasa Rao and Others2
• Facts: -
One Jaheen Jamal alias Rumani filed O.P.79/86 claiming compensation for the injury
sustained by him in a motor accident against the respondents. While the said O.P. was
pending, Jaheen Jamal alias Rumani died in another motor accident on 3-4-1987, leaving
behind him petitioners Nos. 2 to 4, who are his parents and wife. As he died pending O.P.,
the petitioners’ Nos. 2 to 4 filed I.A.1586/89 for impleading them as petitioners Nos. 2 to 4
in the said original petition on the ground that Jaheen Jamal alias Rumani claimed a sum of
Rs. 18,286.55 Ps. towards the amount that was spent in respect of the treatment he took for
the injuries received in the accident and therefore, as the loss is to the estate of the
deceased, they are entitled to continue the O.P. as his legal representatives. Respondent
Nos. 1 and 2, who are the driver and the owner of the ill-fated vehicle, remained ex parte.
The third respondent, who is the Insurance Company, resisted the said application

1
Radhu Napit v Tarapdo Napit, 2018 SCC OnLine Jhar 635.
2
Nurani Jamal And Others v Naram Srinivasa Rao and Others, AIR1994 AP 6.
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 contending that they cannot be permitted to come on record as the legal representatives of
the deceased because the cause of action does not survive. The lower Court, however,
accepted the contention of the third respondent and dismissed the said application.
Aggrieved by the said order, this revision petition is filed.
• Issue: -
Whether the petitioners should be permitted to be brought on record as petitioners Nos. 2 to
4 in the main O.P. as the legal representatives of the deceased-Jaheen Jamal alias Rumani?
• Held: -
The learned judge agreed that this maxim “actio personalis moritur cum persona” is
applicable in respect of all personal wrongs, but with that, he also recognized an exception
to it. He said, “where a tort-feasor is benefitted by the wrong done, an action would lie
against the representatives of a wrong-doer.” therefore, this decision did not help the third
respondent.
3) Jitendra Ballav Burdhan v Dhirendranath Burdan3
• Facts: -
The plaintiff filed a suit for partition of land and claimed the I/5th share in the property.
This suit was successfully contested, and a decree was declared, saying I/5 share of the
plaintiff by a preliminary decree. This was challenged in court, but it was withdrawn. Then
the final decree proceedings were initiated, and the decree was made final. During the final
decree proceedings, defendant no.4 died. Therefore, an application for substitution was
filed in the said decree proceeding with a prayer to substitute the legal heirs of the deceased
defendant no.4. Notices were issued to the proposed legal heirs of the deceased defendant
no.4.
• Held: -
The defendant who died, i.e., defendant no.4, he did not contest the suit, and I/5th share
was granted in favor of defendant no.1 to defendant no.5 jointly as they all hailed from a
common ancestor, Jagat ballav. The order was passed by the honorable High Court of
Odisha in the final decree proceedings.

3
Jitendra Ballav Burdhan v Dhirendranath Burdan, AIR 2004 Ori 148.
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 CONCLUSION

Earlier under the common law system, a lawsuit was used to automatically abate the death of a party.
However, whether the cause of action is abated or not depends on whether or not the lawsuit was
considered personal to the parties or not. For example, property and contract cases were thought to
involve separate issues from the parties themselves and did not necessarily abate the death of a party. On
the other hand, personal injury cases, including those injuries to the person as well as cases of libel,
slander, and malicious prosecution, were considered personal and did abate at the death of the party.
Today, there are a number of states which have statutes that permits the revival of an action that was
pending when a party died. But in the usual course of action, an administrator or executor is substituted
for the deceased party, and the lawsuit continues. There can be a situation where the lawsuit may not be
revived unless the underlying cause of action continues to have its legal existence. Every state has its own
revival statutes, and they vary from state to state, but today many lawsuits do not abate due to the death of
either party.

In a situation where two or more persons bring an action to the court, and if, in that course, one of them
dies, then the action will not abate if the cause of action survives. The action will continue in the name of
the surviving party, or by the representatives of the decedent. After the death of a party, if the right to be
enforced survives against or in favor of the surviving party, then the action will not abate but will continue
against and for the surviving parties. In common law, if the defendant dies, it will not abate an action
against the other defendants entirely, either in tort actions or in contract law. If the rights of the deceased
party, or of his/her successors remain in the cause of action, then the matter is either suspended or abated
until the action is properly revived and a successor is named. A judgment is not entered against the
decedent’s successors in interest or against her/his former rights until these steps are taken.

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