Upgrad LLM

what happens when the defendent dies in money recovey suit


Dear Sir,

In a money recovery suit both my self and my mother and several others are the defendants. We have already filed the written statements denying the allegations.  Last month my mother was passed away. Now I would like to know the following.

1. Whether I need to inform to the court that my mother was passed away.

2.What happens if I do not inform to the court.

3.Do I need to inform to the court about the particulars of the legal hairs of  my mother or not ?

4.Can I file an affidavit to the court stating that in case if the order is given in favour of the plaintiff I will make the payment.  (This is only to avoid unnecessary complications to the other legal hairs of my mother i.e. my brothers etc)

Please advice me.

SRINIVAS K

 

 

 

 

 

 
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RETIRED JUDICIAL OFFICER

Dear Sir,

My answers are as follows

1. Whether I need to inform to the court that my mother was passed away.

ans: Yes, produce copy of death certificate.

2.What happens if I do not inform to the court.

Ans: The plaintiff will get copy from the office and negivative remarks will be passed by the court in the judgment.

3.Do I need to inform to the court about the particulars of the legal hairs of  my mother or not ?

Ans: It is better so that you will win the confidence of the court. 

4.Can I file an affidavit to the court stating that in case if the order is given in favour of the plaintiff I will make the payment.  (This is only to avoid unnecessary complications to the other legal hairs of my mother i.e. my brothers etc)

Ans: Yes, and also deposit the mount. 

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Dear Mr Sriniwas

It's the duty of plaintiff to bring the LRs of deceased defendants on record. you can inform the factotum of death of your mother and details of LRs to the plaintiff by registered post or other means where you can have the proof of service. If plaintiff fails to file an application for substitution of LRs of deceased defendants within 90 days from the date receiving information of death, the suit qua such defendant abates. Refer order 22 rule 4(3).
Therefore, defendant should inform the plaintiff about such death and wait for plaintiff to file application for substitution. if plaintiff fails to file such application, you should file an application seeking order of abatement from the court that suit against your mother has abated.
 
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Hello sir,

Rules 4 and 9 of Order XXII of CPC provide for Procedure in case of death of one of several defendants or of sole defendant:--

(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 or sole surviving 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.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased-defendant.

(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

To answer (1) You need to make an application under Rule 4(1) Order XXII of CPC which shall cause to allow the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

To answer (2) Where within the time limited by law no application is made under Sub-rule (1) of Rule 4, the suit shall abate as against the deceased-defendant.

To answer (3) The application shall contain all the necessary details regarding the death of the defendant or as provided by the court.

To answer (4), All the necessary steps can be taken including depositing the principle amount and filing affidavits by the legal representatives.

Hope i was able to solve your query!

 
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