In what cases suit or appeal does not abate on the death of the party? Also, give exceptions.  

Question: In what cases suit or appeal does not abate the death of the party? Also, give exceptions.

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Answer

When the party to a suit dies and no right to sue survives, the suit abates. It means that the legal action which had been taken dies and no relief can be claimed. The court records its finding that the party has died and the right to sue does not survive and pass an order of abatement of a suit. However, a suit or appeal does not abate on the death of the party in the following circumstances as laid down in Order XXII of the Code of Civil Procedure:

No Abatement of Suit if Right to Sue Survives

According to Order XXII Rule 1, a suit shall not abate even if the only plaintiff or the only defendant dies if the right to sue survives their death. The right to sue is a legal right of every person which entitles him to move the court whenever there is an interference with his legal rights.

Thus, in a situation where the legal action can still be taken even if the plaintiff or the defendant has died, it is said that the right to sue survives whereas when legal action cannot be taken after the death of a party, it is said that right to sue does not survive.

For instance, A contract to sell a house can be performed by the relative of a person who has died but a contract to make a painting cannot be performed by anyone else except one skilled in the art. Thus, in the prior case, the right to sue survives while in the latter, it does not. Hence, Rule 1 states that if the right to sue survives, the suit shall not abate even if the parties are dead. The parties may be substituted.

No Abatement if Multiple Plaintiffs or Defendants

If there are several plaintiffs in a suit filing a case on more than one defendant, there are multiple parties in a suit. Now, if one of the plaintiffs and/or one of the defendants died before the suit is completely disposed of, the suit shall not abate but continue by the plaintiff(s) who are alive against the defendant(s) who are alive.

Rule 2 empowers the court to continue the suit in a normal manner as it was proceeding before the death of the party/parties even after one of the plaintiff or defendant has died. However, the court shall make an entry to that effect in the record. It means that in its order for the hearing on the day when the court is informed of the death of the parties, the court shall make a written note about the details of the parties who have died.

Rule 3 prescribes the procedure to be followed for the substitution of parties in a pending suit. First of all, substitution takes place under two circumstances;

1. firstly, when the sole plaintiff in a suit dies but the right to sue survives and can be enforced by the legal representatives of the plaintiff, and

2. secondly, when there is more than one plaintiff or defendant in a suit and one or more of the plaintiffs/defendants die but at least one survives but the right to sue dies with the deceased plaintiffs and the alive plaintiff(s) cannot continue the suit. In these situations, the legal representatives of the plaintiffs can substitute the deceased parties and continue the proceedings before the court.

If the court is of the opinion that the right to sue in the suit survives, the substituting party is an authorized legal representative and that the application for substitution of parties is filed within the prescribed time limit, the court may allow the application and allow the suit to proceed.

There are few exceptions as laid down in the case of Puran Singh v. the State of Punjab (1996) SC to the aforesaid provision when the right to sue comes to an end on the death of the party. They are listed as below:

1. Suit for defamation: Because the cause of action is purely personal in nature so no right to sue survives.
2. Suits for assault; other personal injuries, except death.
3. Dissolution of marriage
4. Breach of Contract involving personal skill
5. Claims based on Personal trust also come to an end. For example, A asked B to look after his house as trustee and no one else. So, when B dies, the suit cannot be carried forward by his LRs.
6. Suit for malicious arrest is also personal action and hence the right to sue doesn’t survive.

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