Introduction:
To begin to understand the repercussions of death, marriage and insolvency of parties in civil proceedings, we have to understand first what “execution” in Civil Procedure means as it is the fulcrum with which the process achieves its rightful result. “Execution is the medium by which a decree-holder constrains the judgment-debtor to do the command of the decree or order as the case may be.”[1] It is the medium through which the holder of decree constraints the debtor of judgement to carry out the command or order as it maybe. The term (execution) is not defined in the Code of Civil Procedure, 1908. To be precise, “execution” means the process by which the judgement of the court is carried out. The principles which govern the execution of decree or order are Section 36 to 74 and Order XXI of CPC (Code of Civil Procedure, 1908).
Death, defined by Merriam Webster dictionary as, “a permanent cessation of all vital functions”. In simpler terms, it means when someone departs from the world and ceases to be a member of the living community, we say they are dead. Their physical and intellectual capabilities become null and all that remains of them are decaying flesh.
Marriage, defined by Merriam Webster dictionary as, “the state of being united as spouses in a consensual and contractual relationship recognized by law”. It makes up an integral part of an individual’s life and has influences in every part of that person’s life.
Insolvency of Parties means when a party is not able to pay his debts due to his insolvency or being bankrupt which he is the reason for the failure of him paying his debtors. This is explained in Order XXII of the CPC.
All these three scenarios have some important implications on civil proceedings. If the parties have encountered any of these scenarios, the civil case will duly change its course and according to the CPC, new orders or decrees as prescribe might come into play.
Death
If one of the parties met with demise, what will it mean in legal terms to the civil proceedings of the court? This is discussed under Order XXII of CPC. The following are the different pathways available to the court corresponding to the different situations –
Rule 1 & 2
“No abatement by party’s death if the right to sue survives”.[2] This means if one of the parties dies but the right to sue survives then the suit will not be foregone. The dissolution of the suit will not be abated by the death of one of the parties. The same will happen if there happens to be more than one plaintiff and defendant and any one of them encounters death, the co-defendants and co-plaintiffs will carry on the suit only if the right to sue survives. For example, in a case where there are several plaintiffs and one of the plaintiffs is met with death but the right to sue survives and the living plaintiffs can carry forward with the suit. The court will record the death of one of the plaintiffs and carry forward the suit.
Rule 3
If one of two plaintiffs or multiple plaintiffs dies and the right to sue doesn’t survive. Or in case the sole plaintiff meets with death and the right to sue survives then with the issuance of an application presented to the court on that matter, the corresponding legal representative of the respective plaintiff or plaintiffs would be made a party to the suit and the legal proceedings will continue. This protects the interest of the plaintiff and doesn’t default their suit on the occurrence of their death. Justice will not be impeded by the death of the plaintiff/plaintiffs and the court will make sure on serving it.
“Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff”.[3] This means that if the application is not made to the court, regarding the death of the plaintiff/plaintiffs, under the mentioned time limit as prescribed by the sub-rule (1), the court shall abate and on an application by the defendant, the court will make sure to award the defendant the costs he might have to pay to defend the suit, from the estates of the deceased plaintiff. This puts importance on the application to be presented to the court regarding the death of the plaintiff/plaintiffs within the prescribed time period. Failure to do so will force to court to dismiss the case in favour of the defendant.
Rule 4 & 4A
If anyone of two defendants or multiple defendants dies and consequently the right to sue doesn’t survive. Or if the sole defendant dies and the right to sue survives then the court on an application made by the legal representative of the defendant/defendants, will result in the making of the legal representative a party to the suit. And any individual who has been made a party to the suit shall make any defence which is appropriate to his character as a legal representative.
This translates that if such a situation arises where one of the defendants or multiple defendants or sole defendant dies, the court based on an application submitted informing the death of the defendant/defendants shall make the legal representative a party to the suit. Which means, the legal representative will now be authorised to defend the suit in place of the deceased defendant/defendants, in their capacity as the legal representative. Any defence made by the legal representative now has to make appropriate to his status as a legal representative. But if within the time limit as prescribed by sub-rule (1), no application is made or submitted by the respected legal representative of the deceased defendant/defendants, the court will abate the case against the defendant/defendants.
The court may also relieve the plaintiff from the duty of substituting representative of any such defendant who has encountered failure in filing a written statement or who has filed one but have been unsuccessful in appearing and contesting the suit. The court might pronounce against the defendant notwithstanding the death of such defendant and judgement would be passed as if the deceased defendant were alive. Though there happens to be a provision in this case, as if the plaintiff was unaware of the death of defendant and it was that reason which resulted in his failure to provide an application for substitution of the legal representative of the defendant in the specified time period as dictated by the Limitation Act, 1963 (Section 36 of the Act), then the suit as a consequence will be abated. And if the plaintiff does provide an application but after the time period has expired as stated by the Limitation Act, 1963, the admission of that application has to justified under Section 5 of that Act on the ground that the plaintiff has failed to apply in the stated time due to ignorance and provide a reason for so done. If the court finds it reasonable then only the abatement of the case can be avoided.
In the case where the deceased defendant had no legal representative, the court on the application of any one of the parties may continue the proceedings without any representative of the deceased’s estates or may by order may appoint Administrator-General or any other officer of the court or any other individual, as the court may seem fit to represent the estates of the deceased person for the purpose of the suit. Any judgment so forth passed by the court will bind the estates of the deceased individual in the very same way as it would have if he had been alive. Before applying this rule by the court, it would need to give notice of application to any individuals having an interest in the estates of the deceased defendant. And determine that the person appointed by the court as being the legal representative of the so deceased defendant has no interest whatsoever adverse to that of the deceased defendant.
Rule 5
When the question of ascertaining the legal representative of a deceased plaintiff or defendant arises before the court, then such a question will be determined by the court itself. If the question arises before an Appellate Court, it will ask the subordinate court to submit any records regarding the matter, found during the trial (if any). Then based on them, the court shall find the answer to the question.
Rule 6
This rule makes the view of the court clear and transparent regarding the death of any party to the suits. It says that death of any party to the suit will not in any way result in abatement of the judgement by the court and the suit will be treated and the judgement will be passed in the same way as it would have been if the deceased party were to be alive.
Marriage
Marriage of the plaintiff or the defendant doesn’t have any substantial effect on the proceedings of the suit. In the case of a female plaintiff or defendant, her marriage will not result in abatement of the suit and the judgement will be proceeded in its due course. If the judgment is given against the female defendant, it may be executed only against her. Where the husband is liable or responsible, for the debts of the wife by law, by the discretion of the court the decree might also be issued against the husband. Or on an application by the husband, the court may execute a judgement against the husband as it will have done against the wife.
Insolvency of the Parties
The insolvency of parties to a suit is described in Order XXII, Rule 8 & 9 of CPC. These rules state how the discretion of the court might be applied in these matters and the role of assignee or receiver of the plaintiff. The consequences are as follows[4] –
- If the plaintiff to any suit becomes insolvent then the receivers or assignee might want to continue the suit to maintain the benefits of his creditors to avoid its abatement. Although if the receiver or assignee declines to continue the suit or pay the security costs within the prescribed period of time by the court or if the court directs something contrary, then the suit will be abated judgement might as well be passed against the plaintiff.
- In case “the assignee or receiver fails or declines to continue the suit or pay the security, on an application by the defendant the court may dismiss the case on the ground of insolvency of the plaintiff and also award the defendant the costs he has to incur for defending the case.”
- If the suit is dismissed or abated under Order XXII of CPC then no new suit shall be brought with the same cause of action.
- The assignee or receiver of the respective plaintiff or the individual or multiple plaintiffs or the legal representative of the insolvent plaintiff can apply for an order for setting aside the abatement or dismissal of the suit. If it can be proved that there was sufficient reason for the insolvent plaintiff’s assignee or receiver or legal representatives from continuing the suit the court might set aside abatement or dismissal of the suit, noting costs as it may see fit.
- The application made by the insolvent plaintiff’s side has to be filed under Section 5 of the Limitation Act, 1963.
- CPC doesn’t provide any respite as mentioned above for the defendant. The court may put the case on stay or may pass a judgment against the defendant.[5]
Conclusion
During the period of the absence of coded, recorder laws, these matters were left completely to the discretion of the court. This often resulted in diverse judgments making precedents more confusing for the judges as well as the public to comprehend. From the common law system, now thankfully we have Code of Civil Procedure, 1908, which helps the judges with laid down laws regarding the handling of these issues.
Death of a party now will not raise a thousand complications in carrying out the suit neither will the marriage of the party. Insolvency which would have meant a huge hurdle to pass for the courts in case of the proceedings will now be marginalised and the answer to “Who will pay it?” made easy. To conclude, we can say these cumbersome issues are no more cumbersome and their answers are all codified and clear. To know the consequences, one only need to look for the solutions provided by the legislation.
References:
[1] Pranjali Sharma and Jyotsana Uplavdiya, All About Execution of a Decree under Order 21, Code Of Civil Procedure, (August 17, 2018), https://www.latestlaws.com/articles/all-about-execution-of-a-decree-under-order-21-code-of-civil-procedure-by-pranjali-sharma-jyotsana-uplavdiya/#:~:text=The%20proceeding%20by%20which%20he,the%20products%20of%20the%20judgment.
[2] https://www.aaptaxlaw.com/code-of-civil-procedure/order-xxii-code-of-civil-procedure-rule-1-2-3-4-5-6-death-marriage-and-insolvency-of-parties-order-22-of-cpc-1908-code-of-civil-procedure.html
[3] https://www.aaptaxlaw.com/code-of-civil-procedure/order-xxii-code-of-civil-procedure-rule-1-2-3-4-5-6-death-marriage-and-insolvency-of-parties-order-22-of-cpc-1908-code-of-civil-procedure.html
[4] https://www.aaptaxlaw.com/code-of-civil-procedure/order-xxii-code-of-civil-procedure-rule-7-8-9-10-10a-11-12-death-marriage-and-insolvency-of-parties-order-22-of-cpc-1908-code-of-civil-procedure.html
[5] Gurkaran Babrah, Death, Marriage and Insolvency of parties under CPC, (January 21, 2020), https://blog.ipleaders.in/death-marriage-and-insolvency-of-parties/
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