Death, Marriage and Insolvency of Parties

Death, Marriage and Insolvency or Parties

shall not cause the suit to abate if the right to sue survives.

Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue

survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants

alone, the Court shall cause an entry to the effect to be made on the record,. and the suit shall proceed at

the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

(1) Where one of two

or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a

sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application

made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall

proceed with the suit.

(2) 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.

(1) Where one

of two or more defendants dies and the right to sue does not survive against the surviving defendant or

defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, the

Court, on an application made in that behalf, shall cause the legal representative of the deceased

defendants to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal

representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall

abate as against the deceased defendant.

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[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the

legal representatives of any such defendant who has failed to file a written statement or who, having filed

it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced

against the said defendant notwithstanding the death of such defendant and shall have the same force and

effect as if it has been pronounced before death took place.

1. Ins. by Act 104 of 1976, s. 73 (w.e.f. 1-2-1977).

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(5) Where—

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an

application for the substitution of the legal representative of the defendant under this rule within the

period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefore in the Limitation Act,

1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under

section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not

making the application with the period specified in the said Act,

the Court shall, in considering the application under the said section 5, have due regard to the fact of such

ignorance, if proved.]

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(1) If, in any suit, it shall appear to the Court

that any party who has died during the pendency of the suit has no legal representative, the Court may, on the

application of any party to the suit, proceed in the absence of a person representing the estate of the deceased

person, or may be order appoint the Administrator-General, or an officer of the Court or such other person as it

thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order

subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he

would have been bound if a personal representative of the deceased person had been a party to the suit.

(2) Before making an order under this rule, the Court—

(a) may require notice of the application for the order to be given to such (if any) of the persons

having an interest in the estate of the deceased person as it thinks fit; and

(b) shall as certain that the person proposed to be appointed to represent the estate of the deceased

person is willing to be so appointed and has no interest adverse to that of the deceased person.]

any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such

question shall be determined by the Court:

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[Provided that where such question arises before an Appellate Court, that Court may, before

determining the question, direct any subordinate Court to try the question and to return the records

together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate

Court may take the same into consideration in determining the question.]

foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the

death of either party between the conclusion of the hearing and the pronouncing of the judgment, but

judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect

as if it had been pronounced before the death took place.

(1) The marriage of a female plaintiff or

defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with the

judgment, and, where the decree is against a female defendant, it may be executed against her alone.

(2) Where the husband is by law liable for the debts of his wife, the decree may, with the permission

of the Court, be executed against the husband also; and, in case of judgment for the wife, execution of the

decree may, with such permission, be issued upon the application of the husband, where the husband is by

law entitled to the subject-matter of the decree.

(1) The insolvency of a plaintiff in any suit which the

assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless

such assignee or receiver declines to continue the suit or (unless for any special reason the Court

otherwise directs) to give security for the costs thereof within such time as the Court may direct.

1. Ins. by Act 104 of 1976, s. 73 (w.e.f. 1-2-1977).

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(2) Procedure where assignee fails to continue suit, or give security.—Where the assignee or

receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the

defendant may apply for the dismissal of the suit on the ground of the plaintiff's insolvency, and the Court

may make an order dismissing the suit an awarding to the defendant the costs which he has incurred in

defending the same to be proved as a debt against the plaintiff’s estate.

(1) Where a suit abates or is dismissed under this Order, no

fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the

assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement

or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the

Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of Section 5 of the 1[Indian Limitation Act, 1877 (15 of 1877)] shall apply to

applications under sub-rule (2).

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[Explanation.—Nothing in this rule shall be construed as barring, in any later suit, a defence based

on the facts which constituted the cause of action in the suit which had abated or had been dismissed

under this Order.]

(1) In other cases of an

assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of

the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling

the person who procured such attachment to the benefit of sub-rule (1).

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appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about

it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the

contract between the pleader and the deceased party shall be deemed to subsist.]

the word “Plaintiff” shall be held to include an appellant, the word “defendant” a respondant, and the

word “suit”an appeal.

execution of a decree or order.