Death, Marriage and Insolvency of Parties under the Code of Civil Procedure, 1908
Death, Marriage and Insolvency of Parties under the Code of Civil Procedure, 1908
1. Introduction
In the course of a civil suit, the circumstances of parties (plaintiff or defendant) may change due to death, marriage, or insolvency. The CPC provides procedures to deal with these events to ensure the suit proceeds fairly and justice is done.
I. Death of a Party (Order XXII CPC)
A. Effect of Death on Suit
Death of a party (plaintiff or defendant) does not automatically abate the suit.
The suit may continue if the right to sue survives and the legal representatives or successors come forward.
B. Relevant Provisions: Order XXII CPC
Rule 1: Death of a plaintiff or defendant after institution of suit.
Rule 2: Procedure for substitution of legal representatives.
Rule 3: Court may proceed if the right to sue survives.
Rule 4: Consequences if legal representatives fail to appear.
Rule 5: Decree or order passed in absence of legal representatives.
C. Procedure on Death of a Party
Notice to Legal Representatives:
The court must be informed of the death. Notice is given to legal representatives.
Substitution:
The legal representatives are substituted as parties to continue the suit.
Failure to Substitute:
If no legal representative comes forward within the stipulated time, the suit may abate or proceed against the other parties.
D. Legal Principles and Case Law
Case 1: Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 3 SCC 134
The Supreme Court held that death of a party does not extinguish the right to sue.
The legal representatives should be substituted to carry on the suit.
Case 2: Union of India v. M.V. Jadhav, AIR 1967 SC 1394
Emphasized the need for court to allow substitution before proceeding further.
The court cannot dismiss a suit without giving an opportunity to legal representatives to be heard.
Case 3: Mahant Mangal Das v. Shobha Rani, AIR 1975 SC 2297
Legal representatives stand in the shoes of the deceased and continue the litigation.
II. Marriage of a Party (Order XXIII CPC)
A. Effect of Marriage on Suit
Marriage of a party, especially a female party, generally does not affect the suit.
It neither abates the suit nor requires substitution.
B. Relevant Provision: Order XXIII CPC
Rule 1: Marriage of a female party shall not affect the suit.
Rule 2: Proceedings continue as if no change has occurred.
No separate formalities for substitution are required.
C. Legal Position
Marriage is a personal change and does not affect the right to sue or be sued.
The party continues in the same capacity.
This provision protects the right of married women to continue litigation without unnecessary procedural hurdles.
D. Case Law
Case 1: Rukmini Devi v. Narasimha Rao, AIR 1954 SC 549
The Supreme Court held that marriage of a female plaintiff/defendant does not affect the suit.
Case 2: Smt. Meena Bai v. Smt. Sumati Bai, AIR 1963 SC 895
Confirmed that the marriage of a female party does not affect the proceedings.
III. Insolvency of a Party (Order XXIII CPC)
A. Effect of Insolvency on Suit
When a party to a suit becomes insolvent, the suit does not automatically abate.
The official assignee or receiver in insolvency proceedings may be substituted.
B. Relevant Provision: Order XXIII CPC
Provides for substitution of official receiver or assignee in insolvency cases.
Suit continues in the name of the official receiver or assignee as a representative of the insolvent party.
C. Procedure
The court allows substitution on proof of insolvency.
Official receiver steps into the shoes of the insolvent party.
Proceedings continue against or by the official receiver.
D. Legal Principles and Case Law
Case 1: Union of India v. Amalendu Biswas, AIR 1965 SC 1523
Official receiver can be substituted to continue or defend the suit.
Insolvency does not extinguish the right but transfers it to the receiver.
Case 2: Official Receiver v. N.K. Verma, AIR 1967 SC 1005
The receiver is competent to represent the insolvent party in litigation.
Summary Table
| Event | Effect on Suit | Procedure | Key Cases |
|---|---|---|---|
| Death | Suit continues if right survives | Substitution of legal representatives | Suraj Lamp (2009), Union of India (1967) |
| Marriage | No effect | Suit continues as before | Rukmini Devi (1954), Meena Bai (1963) |
| Insolvency | Suit continues | Substitution of official receiver | Union of India (1965), Official Receiver (1967) |
Conclusion
Death of a party requires substitution of legal representatives to continue the suit.
Marriage, particularly of a female party, does not affect the suit or require any procedural change.
Insolvency results in substitution of the official receiver or assignee to represent the insolvent party.
These provisions ensure that suits are not unnecessarily delayed or abated due to changes in the status of parties and that justice is administered efficiently.
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