DHARMASHASTRA NATIONAL LAW UNIVERSITY

JABALPUR

Subject- Civil Procedure Law

A project report on

SURVIVAL OF RIGHT TO SUE AND ABATEMENT OF SUIT

SUBMITTED TO- SUBMITTED BY-

Dr. PRAVEEN TRIPATHI PRINCE KESHARI

(Associate Professor of Law) B.A.LLB (Hons),

Mr. Gautam Gupta 7th Semester

(Assistant Professor of Law) BAL/093/19

1|Page
 ACKNOWLEGDEMENT

The success and final outcome of this project required a lot of guidance and assistance from many
people and I am extremely privileged to have got this all along the completion of my project. All that I
have done is due to such supervision and assistance and I would not forget to thank them.

Firstly, I am extremely obliged to Dharmashastra National Law University to provide me such an

opportunity to do this project.

I respect and thank to Our Respected Vice-Chancellor Proof (Dr.) V. Nagaraj and owe my deep gratitude

to my project guide Mr Gautam Gupta and Dr. Praveen Tripathi, they guided me all along, till the

completion of my project work by providing all the necessary information for developing a good system.

At last, I thanked to my family & friends.

PRINCE KESHARI

BAL/093/19

2|Page
Contents
AIMS AND OBJECTIVES.................................................................................................................................. 4
RESEARCH HYPOTHESIS ................................................................................................................................ 4
RESEARCH PROBLEM..................................................................................................................................... 4
SCOPE AND LIMITATION ............................................................................................................................... 4
RESEARCH QUESTIONS.................................................................................................................................. 4
RESEARCH METHODOLOGY .......................................................................................................................... 5
MODE OF CITATION ...................................................................................................................................... 5
INTRODUCTION ............................................................................................................................................. 6
RIGHT TO SUE................................................................................................................................................ 7
DEATH OF PLAINTIFF ..................................................................................................................................... 8
DEATH OF DEFENDANT ............................................................................................................................... 10
NATURE OF INQUIRY ................................................................................................................................... 12
LEGAL REPRESENTATIVE ............................................................................................................................. 13
OTHER PROVISIONS: ORDER XXII ................................................................................................................ 14
CONCLUSION .................................................................................................................................................. 17

3|Page
AIMS AND OBJECTIVES

The main aims and objectives of this research project is to highlight the following-

● To understand the meaning of right to sue and abatement of suits.

● To understand Order XXII of Civil Procedure Code.
● To study about the various circumstances where abatement of suits arises.

RESEARCH HYPOTHESIS

There is no abatement of suit in case of death of party if right to sue survives.

RESEARCH PROBLEM

Order 22 deals with the creation, assignment or devolution of interest during the pendency of
suits. It also applies to appeals, but not to execution proceedings. The provisions of Order 22
are exhaustive. This research paper tries to study on creation, assignment or devolution that
may arise in the circumstances such as death of a party, marriage of a party, insolvency of a
party, assignment of interest.

SCOPE AND LIMITATION

This paper is an overview of circumstances where right to sue survives and abatement of suit
arises. The researcher has supported her view through various case laws and statutes. Due to
lack of observational analysis and on—field research and due to limited time period, this
research paper lack in depth study on some points.

RESEARCH QUESTIONS

● What are the effects of death of parties to suit?

● Where the party to a suit dies. Will the right to sue survives?
● What is the meaning of right to sue?
● Where a suit abates or is dismissed for the non-substitution of the legal representative or
representatives of the deceased party, wherever a fresh suit can be filed on the same case
of action?

4|Page
 ● Whether a marriage of a female plaintiff or defendant cause the suit to abate?

RESEARCH METHODOLOGY

This is doctrinal research. The researcher has relied upon secondary sources of books, reports,
recommendations, journals, articles and web sources as a part of secondary sources of the
writing of this project.

MODE OF CITATION

A uniform method of citation is followed throughout this project.

5|Page
 INTRODUCTION

No decree can be passed in favour of or against a dead person, that is, if a Plaintiff or defendant
dies and right to sue survives than a decree can only be passed after the appointment of Legal
Representative for that particular party.

Now, Order XXII of Civil Procedure Code, 1908(referred as ‘code’) deals with Death, Marriage
and Insolvency of Parties which talks about procedure after the death of parties to the suit. Also
Order XXII deals with the creation, assignment or devolution of interest during the pendency of
suits.

The Creation, Assignment or Devolution can arise under Order XXII of CPC in the following
circumstances:

➢ Death of a party (Rules 1 to 6 and 10-A);

➢ Marriage of Party (Rule 7);
➢ Insolvency of a party (Rule 8); or
➢ Assignment of interest (Rule 10)

Survival of right to sue is not defined anywhere in the code but through the provisions of the
code it can be deduced that right to sue means right to bring suit claiming the same relief which
the deceased plaintiff claimed at the time of his death. The Cause of Action must be the same in
the new suit as arised in previous suit.1

During the pendency of the suits, if any of the parties dies and right to sue survives than it can
be claimed from the deceased Legal Representative. In case of no legal representative of
deceased party, Rule 4-A of Order XXII will apply and court may by appoint the Administrator-
General, or an officer of the court or on an application of any party to the suit proceed in the
absence of person representing the estate of the deceased person for the purpose of the suit.

1
Phool Rani v. Naubat Rai, AIR 1973 SC 2110

6|Page
 RIGHT TO SUE

The expression Right to sue has not been defined in the code but it may be interpreted to mean
“right to seek relief” which means right to sue survives if cause of action survives or continues.

The general idea is that all rights of action and all demands, existing in favour of or against a
person at the time of his death, survive to or against his representatives. 2 But in cases of suit
based on personal actions right to sue will not survive against the legal representatives of the
deceased person and the suit will abate immediately.

E.g.- When there is contract between A and B under which B will be making a painting for A but
B died before he could complete the painting. In the above situation the Right to sue will not
survive against the representatives of B because making a painting is personal action and it
cannot be transferred to his representatives. In these cases, the maxim actio personalis moritur
cum persona (a personal action dies with the person) applies.

The test to decide whether right to sue is survivable or not is based on that whether right is
inheritable or not, meaning if a suit is based on personal action than right to sue will not survive
and suit will abate.

This principle can be found in Section 373 of the Indian Contract Act, reads as:

“Promises bind the representatives of the promisors in case of the death of such
promisors before performance, unless a contrary intention appears from the contract.”

Eg.: - A filed a defamation suit against B. A dies before the day. The contract cannot be
enforced either by A’s representatives or by B.

Also, the Indian Succession Act, 1925 under Section 306 says that right to sue does not
survive in case of Defamation, assault or other personal injuries not causing the death of
the party, the relief sought could not be enjoyed or granting it would be nugatory.4

2
Shri krishna singh v. Mathura Ahir, (1981) 3 SCC 689
3
S 37 of Indian Contract Act,

7|Page
 DEATH OF PLAINTIFF

Where the sole plaintiff dies, the suit will not abate, if the right to sue survives. It can be
continued by the heirs and legal representatives of the deceased plaintiff. If the right to sue
does not survive, the suit will come to an end.5

Where one of the several plaintiffs dies and the right to sue survives to the surviving plaintiff or
plaintiffs, the court will make an entry to that effect and proceed with the suit by the surviving
plaintiff or plaintiffs."6

Where one of the several plaintiffs dies and the right to sue does not survive to the surviving
plaintiff or plaintiffs or where the sole plaintiff dies and the right to sue survives, the court on
an application by the legal representative of the deceased plaintiff will make him a party and
proceed with the suit.7

When the Right to sue survives and within 90 days (As provided under Article 120 of Limitation
Act, 1963) deceased party representative must be impleaded otherwise the suit will abate.
Court can award some costs to defendant on application made by him in defending the suit8
when failed to file application within time limited by law. If an appellant failed to file an
application within 90 days than also, they get a 60-day time under Article 121 of Limitation Act,
1963 to set aside the abatement.

Even if application is not filed to set aside the abatement than appellant can file application
under Section 5 of Limitation Act, 1963 for condonation of delay. So, under section 5 of
Limitation Act two application needs to be filed: -

➢ To set aside the Abatement

➢ For Condonation of Delay

4
S 306 of Indian Succession Act, 1925
5
Order XXII R 1 OF Civil Procedure Code, 1908
6
Order XXII R 2 OF Civil Procedure Code, 1908
7
Order XXII R 3(1) OF Civil Procedure Code, 1908
8
Order XXII R 3(2) OF Civil Procedure Code, 1908

8|Page
When a suit is filed and Plaintiff dies after the hearing of the suit and before the judgement is
pronounced, then the suit will not abate. Where the plaintiff dies after hearing and before
pronouncement of judgment, the suit shall not abate.9 Order XXII Rule 6 says that the suit will
not abate if death of party occurs during the pendency of suit and judgement may be
pronounced and shall have the same effect as if the judgement has been given before the
death of plaintiff.10

9
Order XXII R 6 OF Civil Procedure Code, 1908
10
N.P. Thirugnanam v. R. Jagan Mohan Rao, AIR 1996 SC 116

9|Page
 DEATH OF DEFENDANT

Where the sole defendant dies, the suit shall not abate if the right to sue survives. It can be
continued against the heirs and legal representatives of the deceased defendant.11

Where one of the several defendants dies and the right to sue survives against the surviving
defendant or defendants, or where the sole surviving defendant dies and the right to sue
survives, the court, on an application by the legal representatives of the deceased defendant,
will make him a party and proceed with the suit.12

Where no such application is made for the appointment of representative within the period of
limitation (within 90 days), the suit shall abate as against the deceased defendant.13

If the right to sue still exists, the representative of the deceased person must be impleaded
within 90 days (as required by Article 120 of the Limitation Act of 1963), failing which the
lawsuit will be dismissed. On a request made by the defendant in defending the case, the court
may grant him certain fees. According to Article 121 of the Limitation Act of 1963, an appellant
has additional 60 days to set aside the abatement if they failed to file an application within the
allotted 90 days under Article 120 of Limitation Act, 1963.

Even if an application to set aside the abatement is not made, the appellant may still request a
condonation of delay under Section 5 of the Limitation Act of 1963 applicant have to file
application to set aside the abatement, for impleadment of Representatives and Condonation
of Delay.

The court may, if it thinks fit, exempt the plaintiff from substituting the legal representative of a
non-contesting or pro forma defendant and pronounce judgment the death of such
defendant.14

11
Order XXII R 1 OF Civil Procedure Code, 1908
12
Order XXII R 2 OF Civil Procedure Code, 1908
13
Order XXII R 4(1) OF Civil Procedure Code, 1908
14
Order XXII R 4(4) OF Civil Procedure Code, 1908

10 | P a g e
When a suit is filed and Plaintiff dies after the hearing of the suit and before the judgement is
pronounced, then the suit will not abate. Where the defendant dies after hearing and before
the pronouncement of judgment, the suit shall not abate.15 The suit also does not abate on
account of the death of an unnecessary party16, meaning when a judgement can be passed in
the absence of the unnecessary party and suit will not be affected by the absence of that
particular party.

15
Order XXII R 6 OF Civil Procedure Code, 1908
16
Radha Rani v. Hanuman Prasad, AIR 1966 SC 216

11 | P a g e
 NATURE OF INQUIRY

A personal action dies with the death of the person (action personalis moritur cum persona).
However, this concept only applies to a specific subset of ex delicto actions. In other cases, the
lawsuit continues even after the plaintiff/defendant passes away since the right to sue still
exists. Therefore, the first issue to be resolved once a party to a lawsuit passes away is whether
or not the right to sue persists. The lawsuit is over if it is determined that the right is a personal
one that expires with the death of the person in question and does not pass to their legal
representatives. But if the right to sue survives against the legal representatives of the plaintiff,
the suit can continue.17

In the case of M. Veerappa v. Evelyn Sequeira18, the Supreme Court stated:

“If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is
founded partly on torts and partly on contract then such part of the claim as relates to torts
would stand abated and the other part would survive. If the suit claim id founded entirely on
contract, then the suit has to proceed to trial in its entirety and be adjudicated upon.”

In the case of Melepurath Sankunni vs. Thekittil Geopalankutty19, the Supreme Court held that
“where a suit for defamation is dismissed and the plaintiff files an appeal, the plaintiff-appellant
seeks to enforce his right to sue for damages and against the defendant. The right to sue,
therefore, does not survive on the death of the plaintiff. But where such suit is decreed, even
on the death of the plaintiff, the legal representatives are entitled to continue the appeal since
the question relates to benefit or detriment to the estate of the deceased. In such cases, the
cause of action merges with the decree.”

17
Puran Singh v. state of Punjab, (1996) 2 SC 506.
18
(1988) 1 SCC 556
19
Yallawwa v. Shantavva, 91997) 11 SCC 159.

12 | P a g e
 LEGAL REPRESENTATIVE

The decision of the issue of legal representation is covered under Rule 520. It states that the
court must make a determination if the issue of who is or is not the legal representative of a
deceased plaintiff or deceased defendant arises. The court may conduct an investigation to
settle any disagreements on who is the deceased plaintiff's or defendant's legal representative.
But it's not required to conduct a thorough or involved investigation. When such a subject is
brought before the appellate court, that court may order the lower court to look into it and
provide its conclusions regarding the disagreement over a deceased person's legal
representative.

The Amendment Act of 1976 added Rule 4-A to the list of rules. It outlines what happens when
a party who passed away during the pendency of the lawsuit has no legal representative or a
legal representative cannot be located. The main goal of this clause is to ensure that the other
party is not harmed by the absence of the deceased party's legal representative. According to
Rule 4-A, the court can still pursue the case based on any party's application, appoint the
Administrator-General or another officer designated by the court to represent the decedent's
property, and issue a judgement that will be equally binding on the estate as it would have
been on the decedent's legal representative had he or she been present.21

Additionally, the court must give notice before issuing any orders to anyone who has a stake in
the estate of a deceased party.

20
ORDER XXII R 5 OF CIVIL PROCEDURE CODE, 1908
21
ORDER XXII R 4-A OF CIVIL PROCEDURE CODE, 1908

13 | P a g e
 OTHER PROVISIONS: ORDER XXII

1. NO ABATEMENT BY REASON OF DEATH AFTER HEARING

If Plaintiff or Defendant dies after the trial and before giving the judgement than suit will not be
abated and judgement can be pronounced irrespective of the death of the parties and shall
have the same the effect as it would have been passed before the death of the parties.22

2. EFFECT OF ABATEMENT OR DISMISSAL23

When any suit is abated or dismissed than no fresh suit can be file for the same cause of action.

Under sub-rule (2) following persons can apply:

➢ The plaintiff where the suit has abated under Rule 4 (3);
➢ The legal representative of the deceased plaintiff, where the suit has abated under Rule
3 (2);
➢ The assignee or the receiver in case of an insolvent plaintiff, where the suit is dismissed
under Rule 8 (2).

Under the provisions of the Code, as already stated earlier, abatement comes into effect
automatically on the expiry of the period prescribed, from the date of death of the deceased
party. No specific order by any Court is required to bring into effect an abatement and,
therefore, no appeal is provided against an order recording the fact that the suit has abated.
The Code, however, provides for an application for setting aside the abatement under sub-rule
(2) if it is proved that there was sufficient cause for not making application. Application for
condonation of delay under Section 5 of Limitation Act, 1963 can be filed for setting aside the
abatement if it is proved that there was sufficient cause for delay.24

22
ORDER XXII R 6 OF CIVIL PROCEDURE CODE, 1908
23
ORDER XXII R 9 OF CIVIL PROCEDURE CODE, 1908

24
S 5 of LIMITATION ACT, 1963

14 | P a g e
 3. MARRIAGE OF PARTY25

The suit will not stop because a female plaintiff or defendant marries. If a female defendant is
the judgement-debtor of the decree, she may be the only one who is subject to its execution. If
the husband is legally entitled to the subject of the decree or is responsible for his wife's debt,
he may, with the court's approval, execute a decree in his wife's favour or against her.

4. INSOLVENCY OF PARTY

The lawsuit may still be pursued for the benefit of the plaintiff's creditors despite the plaintiff's
insolvency, who can designate a receiver or assignee to carry on the case. However, on the
request of the defendant, the claim may be dismissed on the grounds of the plaintiff's
insolvency if the assignee or Receiver declines to proceed with the case or to provide security
for costs as directed by the court. The plaintiff's estate may be held liable for the defendant's
legal expenses, which the court may also order them to pay.

In cases when the defendant becomes insolvent, Rule 8 does not apply. In these situations, the
court may halt any litigation or other procedures against the defendant who has been declared
insolvent. In some situations, Rule 10 will also be applicable, and the receiver will take on the
role of representative of defendant-debtor.

25
ORDER XXII R 7 OF CIVIL PROCEDURE CODE, 1908

15 | P a g e
 5. DEVOLUTION OF INTEREST26

If any interest in the case has been transferred from the plaintiff or defendant to any other
person while it is pending, the action may be maintained by or against that person in
accordance with Rule 10.

Rule 10 is based on the premise that a lawsuit cannot be dismissed simply because one party
transferred their interest in the case's subject matter to a different party while it was still
pending; nonetheless, the lawsuit may be continued against the transferee with the court's
approval.

26
ORDER XXII R 10 OF CIVIL PROCEDURE CODE, 1908

16 | P a g e
 CONCLUSION

According to common law, a litigation was presumed to end automatically upon the passing of
a party. Nevertheless, whether the cause of action subsided relied on whether or not the
parties thought of the litigation as personal to them. If there are two or more parties to a
lawsuit and one of them passes away while it is continuing, the lawsuit will still proceed if the
cause of action persists. The case will proceed under the leadership of a surviving party or the
decedent's heirs. The case will continue for and against the remaining parties if the right sought
to be enforced only applies to the remaining plaintiffs or defendants after a party's death.

However, the death needs to be recorded. In a contract or tort case, the death of one
defendant does not, under common law, completely bar an action against the remaining
defendants. The action completely ceases at the death of one of the two co-parties and cannot
be revived if that co-party is a necessary party, without whom the judgement will be
meaningless.

Provisions of Order 22 CPC are procedural and not penal in nature. They are designed to
advance justice. Substantive rights of the parties cannot be defeated by strict adherence and
rigid interpretation. On sufficient cause being shown, delay in bringing legal representatives of
the deceased (plaintiff or defendant) can be brought on record by condoning delay or setting
aside abatement.27

27
Banwari Lal v. Balbir Singh, (2016) 1 SCC 607.

17 | P a g e