Death, Marriage & Insolvency of Parties (O.22) — CPC & Limitation Act Notes

Death, Marriage & Insolvency of Parties (O.22)

A man wins a defamation case, his opponent appeals, and then the winner dies. Do his sons step into his shoes and carry on the fight over his reputation? In Melepurath Sankunni Ezhuthassan v Thekittil Gopalankutty Nair (1986) the Supreme Court answered with a centuries-old maxim: actio personalis moritur cum persona [a personal action dies with the person]. Reputation is personal; when the person dies, the personal action dies with him. This is the flagship problem of Unit 3, and once you understand why it is decided this way, you can solve every variant.

What happens when a party dies, marries or becomes insolvent

Order 22 answers a simple question: a suit is between living, solvent, capable parties — what happens when that changes mid-way? The organising idea is one line: the suit survives, and the right passes to a substitute, unless the right of action was purely personal to the party.

A. The governing test — does the right to sue survive?

The starting rule is O.22 r.1: the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Everything turns on that phrase.

1. Property and contract actions survive. A suit for money, land, or breach of contract concerns rights that outlive the person and pass to his estate. The legal representatives (LRs) continue it.

2. Purely personal actions do NOT survive. Where the cause of action is personal to the individual — defamation, assault causing only personal hurt, or a right that dies with the person — the maxim actio personalis moritur cum persona applies. There is nothing to pass on, so the action abates (comes to an end).

B. The mechanics — impleading legal representatives

A legal representative (s.2(11)) is a person who in law represents the estate of a deceased — an heir, executor, administrator, or anyone who intermeddles with the estate. When the right survives:

1. Death of one of several plaintiffs / the sole plaintiff (O.22 r.3) — the LRs of the deceased plaintiff apply, within the limitation period, to be brought on record. If no application is made in time, the suit abates as regards the deceased.

2. Death of one of several defendants / the sole defendant (O.22 r.4) — the court, on the plaintiff’s application, brings the deceased defendant’s LRs on record to defend.

3. Time-limit and setting aside abatement — the application to bring LRs on record must be made within 90 days (Art. 120, Limitation Act). If the suit abates for delay, the LR may apply under O.22 r.9 to set aside the abatement, showing sufficient cause; the period for that is 60 days (Art. 121), extendable for sufficient cause under s.5.

4. No abatement where a right survives to the co-plaintiffs/defendants (O.22 r.2) — if, on the death of one of several parties, the right to sue survives to the surviving parties, the suit simply goes on with them; no substitution is needed.

C. Marriage and insolvency

1. Marriage of a party (O.22 r.7) — the marriage of a female party does not cause the suit to abate; it continues, and the decree may be executed against the husband too where he is liable.

2. Insolvency of a party (O.22 r.8) — the insolvency of a plaintiff does not abate the suit if the assignee/receiver in insolvency elects to continue it and gives security for costs; if he declines, the defendant may have the suit dismissed.

D. Applying it to the flagship — defamation and appeal

An appeal is a continuation of the suit, so Order 22 applies to appeals too (O.22 r.11). But note a crucial refinement from Melepurath: if the plaintiff won a defamation decree and the defendant appeals, and then the plaintiff (respondent) dies, the defamation cause of action itself has died — but a money decree for damages that has already been passed is property, and the right to defend that decree survives to the LRs. Distinguish sharply: the personal cause of action abates; a decree already obtained for damages survives as an asset.

🧩 WORKED EXAMPLE — the defamation plaintiff who dies pending appeal

Facts. P sues D for defamation and wins a decree of ₹1 lakh damages. D files an appeal. While the appeal is pending, P dies. P’s sons (his LRs) apply to be brought on record to contest the appeal.

Rule. Under O.22 r.1 a suit/appeal abates only if the right to sue does not survive. By actio personalis moritur cum persona, a purely personal action such as defamation dies with the person. But a decree already passed for damages is property of the estate and survives.

Apply. Two things must be separated. (1) The personal cause of action for defamation — vindicating P’s reputation — died with P; nobody can now be defamed on his behalf. (2) The decree for ₹1 lakh already in P’s favour is a money asset of his estate. On D’s appeal, what is under attack is that decree.

Decoy. “Every right survives to the LRs, so the sons simply step in on everything.” Wrong — the reputation claim does not survive at all.

Conclusion. The LRs can be brought on record — but only to defend the money decree as an asset of the estate. Had P lost at trial and himself been the appellant seeking to establish defamation, the appeal would abate, because the personal right he was asserting died with him. So: property/decree survives; personal defamation claim abates.

Order 22, Rule 1: “The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.”

Order 22, Rule 3(2): “Where within the time limited by law no application is made under sub-rule (1) [to bring the legal representatives of a deceased plaintiff on record], the suit shall abate so far as the deceased plaintiff is concerned.”

Order 22, Rule 4(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 dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.”

In Simple Terms: If a party dies while the case is running, the case usually continues with the dead person’s heirs stepping in — but only if the right being fought over can be inherited. Money and property claims can be inherited, so the case goes on. A purely personal claim, like defamation, dies with the person and the case ends (“abates”). You have 90 days to bring the heirs on record, or the case abates; you can ask the court to revive it for a good reason.

flowchart TD
    DEATH["A party dies during the suit/appeal"]
    DEATH --> Q{"Does the right to sue survive?<br/>O.22 r.1"}
    Q -->|"Yes: property, money, contract"| BRING["Bring LRs on record<br/>r.3 plaintiff / r.4 defendant<br/>within 90 days"]
    Q -->|"No: personal action e.g. defamation"| ABATE["Suit/appeal ABATES<br/>actio personalis moritur cum persona"]
    BRING --> LATE{"Application in time?"}
    LATE -->|"No"| ABATE2["Abates; apply O.22 r.9<br/>set aside on sufficient cause"]
    LATE -->|"Yes"| CONT["Suit continues with LRs"]
    classDef box fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef root fill:#FFF8DC,stroke:#000,color:#000;
    classDef q fill:#FFF2CC,stroke:#B8860B,color:#000;
    class DEATH root;
    class BRING,ABATE,ABATE2,CONT box;
    class Q,LATE q;

Case Laws

• Melepurath Sankunni Ezhuthassan v Thekittil Gopalankutty Nair (1986) — a defamation action is personal; on the plaintiff’s death the personal cause of action abates, though a decree already obtained survives to the estate.
• Custodian of Branches of BANCO National Ultramarino v Nalini Bai Naique (1989) — “legal representative” under s.2(11) is given a wide meaning; it covers anyone who in law represents the estate of the deceased.

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