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CHAPTER 5 PRELIMINARY TOPICS
- Death of a party (Order 22 : Rules 1 to 12) :
Provisions have been made in 0rder. 22 Rule to 12 C.P.C. to cases of creation, transfer or devolution of interests in pending cases. The cardinal rule is that if the right to sue survives, the death of a party (plaintiff or defendant) does not cause the suit to abate. The suit or appeal can be represented by the heirs and legal representatives. If the right to sue does not survive, the suit ends.
The general rule is that death of a party, marriage or insolvency of a party to the suit, pending in the court, will not abate, if the right to sue survives.
Rule 1 : If the right to sue survives, the Suit shall not abate on the death of plaintiff or defendant.
Rule 2 : Death of one of several plaintiffs or defendants :
When there are several plaintiffs or several defendants and any of them dies, and the right to sue survives, the court shall make an entry on record and the suit continues between the surviving plaintiffs alone or against surviving defendants alone.
Rule 3 : Death of sole plaintiff or one of several plaintiffs : In such a case, if the right to sue survives to the sole surviving plaintiff, or the right to sue does not survive to surviving plaintiff alone – the court, on an application made in that behalf, shall allow the legal representatives to be made a party, and the suit proceeds.
However, if no application is made within the period of limitation, the suit abates so far as that dead plaintiff is concerned. Costs, if any may be recovered by defendant from the estate of the deceased plaintiff.
Rule 4 : Death of sole defendant or one or more of several defendants.
- When the sole defendant dies and right survives to legal representative he may be brought on
- When one of several defendants dies, and the right to sue does not survive to defendants alone, legal representatives may be brought on record.
- If no application is made to bring on record, the suit abates.
- However, the defendant may prove his ignorance or show sufficient cause for the delay and the court with due regard to the ignorance of the defendant, may allow the legal representatives to be brought on
Pleaders duty :
It is the duty of the pleader, appearing on behalf of the defend- ant to inform the court about the death of the party. The court gives notice to the other party and allows the legal Reps, to be brought on record.
Marriage of female party: Rule 7 :
This will not abate the suit. Hence, it may be continued and executed against her alone. However, if the husband is liable for debts of his wife, the decree may be, executed against the husband.
Insolvency Rule 8 :
Insolvency of plaintiff will not abate the suit. The official receiver may continue but if he refuses to give security, the court on an application made by the defendant dismiss the suit.