Death, marriage and insolvency of parties; withdrawal and compromise of suits

1. Death of a party: the basic rule (Order XXII rules 1 and 2)

The death of a plaintiff or defendant does not cause the suit to abate if the right to sue survives (rule 1). Whether it survives is a matter of substantive law. As a general rule, causes of action relating to property survive; purely personal causes of action die with the person (actio personalis moritur cum persona). A suit for defamation or for personal injury abates on the plaintiff's death; a suit for possession or for money due does not.

Where one of several plaintiffs or defendants dies and the right to sue survives to or against the others alone, the court records that fact and the suit proceeds (rule 2). Nobody needs to be substituted.

2. Substitution of legal representatives (rules 3 to 5)

• Death of a plaintiff (rule 3). If the right to sue does not survive to the surviving plaintiffs alone, or a sole plaintiff dies and the right survives, the court, on an application, makes the legal representative a party. If no application is made within the time limited, the suit abates so far as the deceased plaintiff is concerned.
• Death of a defendant (rule 4). The same rule applies to defendants. The legal representative may raise any defence appropriate to his character as legal representative. The court may exempt the plaintiff from substituting the heirs of a defendant who did not file a written statement or did not contest (rule 4(4)). Where the plaintiff did not know of the death, delay may be condoned on that ground (rule 4(5)).
• No legal representative (rule 4A). The court may proceed in the absence of anyone representing the estate, or appoint the Administrator-General or another person to represent it.
• Dispute about who is the legal representative (rule 5) is decided by the court in the same suit.
• Duty of the pleader (rule 10A). The pleader of a party who dies must inform the court, which then gives notice to the other side.

Limitation. The application to bring the legal representative on record must be made within ninety days of the death (Article 120, Limitation Act). On its expiry the suit abates automatically; no order is needed. An application to set aside the abatement lies within sixty days of the abatement (Article 121), and section 5 of the Limitation Act applies to it (rule 9(3)).

3. Effect of abatement and setting it aside (rule 9)

Where a suit abates, no fresh suit lies on the same cause of action (rule 9(1)). The legal representative may apply to set aside the abatement, and if he proves that he was prevented by sufficient cause from continuing the suit, the court must set it aside (rule 9(2)). An order refusing is appealable under Order XLIII rule 1(k).

In Union of India v. Ram Charan, 1963 INSC 124, AIR 1964 SC 215, the Court held that ignorance of the defendant's death is not by itself sufficient cause: the plaintiff must show that he was not negligent in failing to learn of it and in failing to apply in time. Later, in Perumon Bhagvathy Devaswom v. Bhargavi Amma (2008) 8 SCC 321, the Court said that the words “sufficient cause” in rule 9 and section 5 should receive a liberal construction where no negligence or want of bona fides is shown, particularly where the default was of the counsel.

Death after hearing. If a party dies between the conclusion of the hearing and the pronouncement of judgment, the suit does not abate, and judgment pronounced has the same effect as if it had been pronounced before death (rule 6).

4. Marriage and insolvency (rules 7 and 8)

• Marriage of a female party (rule 7) does not cause the suit to abate. It proceeds to judgment, and a decree against her may be executed against her alone.
• Insolvency of a plaintiff (rule 8) does not cause abatement where the suit is one the official assignee or receiver can maintain for the creditors, unless he declines to continue it or to give security for costs. The defendant may then apply for dismissal. Insolvency of a defendant is dealt with by the insolvency law, which may stay the suit.
• Assignment or devolution pendente lite (rule 10). Where an interest is assigned or devolves during the suit, the suit may be continued by or against the person to whom it has come, with the leave of the court.

5. Withdrawal and abandonment of suits (Order XXIII rules 1 and 2)

Order XXIII rule 1 distinguishes two things.

• Absolute withdrawal or abandonment (rule 1(1)). The plaintiff may at any time abandon the suit or part of the claim against all or any defendants. No leave is needed, except where the plaintiff is a minor or person of unsound mind (proviso, with the affidavit and pleader's certificate under rule 1(2)).
• Withdrawal with liberty to sue again (rule 1(3)). The court may permit withdrawal with liberty to institute a fresh suit if it is satisfied (a) that the suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing a fresh suit.

A plaintiff who abandons, or withdraws without permission, pays costs and is precluded from a fresh suit on the same subject-matter (rule 1(4)). One of several plaintiffs cannot abandon or withdraw without the consent of the others (rule 1(5)). When a suit is withdrawn, a defendant with a substantial question against other defendants may be transposed as a plaintiff (rule 1A). A fresh suit filed with permission is governed by the law of limitation as if the first suit had never been filed (rule 2); section 14(3) of the Limitation Act gives some relief where permission was granted for a jurisdictional defect.

In K.S. Bhoopathy v. Kokila, 2000 INSC 300, (2000) 5 SCC 458, the Court held that permission under rule 1(3) cannot be granted mechanically: the court must record satisfaction that a formal defect or sufficient ground exists. A “formal defect” is one of form not affecting the merits, such as misjoinder, want of notice under section 80, wrong valuation or non-payment of court-fee. The principle of rule 1(4) was extended beyond suits in Sarguja Transport Service v. State Transport Appellate Tribunal, 1986 INSC 233, (1987) 1 SCC 5, where a writ petitioner who withdrew without liberty was barred from filing a fresh writ petition on the same cause.

6. Compromise (rules 3, 3A and 3B)

Where the court is satisfied that the suit has been adjusted wholly or in part by a lawful agreement or compromise in writing and signed by the parties, or the defendant has satisfied the plaintiff's claim, it records the compromise and passes a decree in terms, even if the compromise covers matters beyond the suit, so far as it relates to the parties (rule 3). If one party denies that a compromise was reached, the court decides the question itself. A compromise that is void or voidable under the Contract Act is not “lawful” (Explanation).

• No separate suit (rule 3A). No suit lies to set aside a decree on the ground that the compromise was not lawful.
• No appeal (section 96(3)). No appeal lies from a decree passed with the consent of parties.
• Representative suits (rule 3B). No compromise may be entered into without the leave of the court, after notice to interested persons; otherwise it is void.
• Minors (Order XXXII rule 7). A compromise on behalf of a minor needs the leave of the court, or it is voidable against all except the minor.

How then is a compromise decree challenged? In Pushpa Devi Bhagat v. Rajinder Singh, 2006 INSC 411, (2006) 5 SCC 566, the Court held that the only remedy of a party who denies the compromise, or says it was unlawful, is to apply to the court that recorded it, under the proviso to rule 3. Order XLIII rule 1A(2) allows the point to be raised in an appeal against a decree passed after recording or refusing to record a compromise, but a consent decree as such is not appealable.

How this is examined

“State the procedure to be followed in the event of death or insolvency of either party to the suit” (August 2024) is answered from sections 1 to 4, with Articles 120 and 121. “Withdrawal and compromise of suits” (January 2026) is a six-mark note: rule 1(1), rule 1(3) with its two grounds, rule 1(4), rule 3 and Pushpa Devi Bhagat. A common problem is a plaintiff who withdrew without leave and now files again; the answer is the bar in rule 1(4).