Judicial Deadlock: Inseverable Liabilities And Order XXII's Ambiguities

The death of any party during the pendency of a civil suit signifies a crucial procedural juncture—one that may either preserve the cause of action or result in the suit abating entirely. Abatement denotes the cessation of legal proceedings on the death of a party to a suit wherein the right to sue does not survive or the legal representative is not substituted within the limitation period. This procedural lapse can effectively nullify the suit, irrespective of its merits, making compliance with statutory timelines and the nature of the right to sue critically important. Order XXII of the Code of Civil Procedure, 1908 ('CPC') governs such situations, providing for the abatement of proceedings on the death of one or more plaintiffs or defendants wherein the right to sue does not survive.

This article deals with the contours of Order XXII with respect to joint and inseverable liability of parties to a suit. The first chapter explores the defect in application of Order XXII to suits wherein the liabilities of defendants are joint and inseverable. The second chapter aims to apply the judicial tests of abatement to circumstances wherein the liabilities of defendants are joint and inseverable. Finally, the article concludes by arguing that in such circumstances either the suit be wholly abated or a judicial intervention must be affected. 

The Dilemma

Order XXII Rule 2 and Rule 4 lay down the procedure to be followed when one of the several defendants dies during the pendency of a suit. Order XXII Rule 2 focuses on the death of one of the several plaintiffs or defendants during the pendency of the suit, wherein the right to sue survives on to the surviving plaintiff or against the surviving defendant. In such circumstances, the court may allow an appropriate entry on record and proceed with the suit with respect to the surviving plaintiffs or defendants. Conversely, Order XXII Rule 4 deals with circumstances where the right to sue does not survive against surviving defendants, on death of one of the several defendants. When the right to sue does not survive against the surviving defendants, legal representatives of the deceased can be brought on record through an application to the court. If no such application is made under Order XXII Rule 4 within the limitation period, the suit stands abated against the deceased defendant. 

If the liabilities of the multiple defendants are joint and several, the law is clear on the application of Order XXII Rule 2 and Rule 4. In such circumstances, either the proceedings are abated as against the deceased defendant as per Order XXII Rule 2, or a legal representative on behalf of the deceased is brought on record and any individual liability is recovered from the estate of the deceased. The legal representative is thereby only liable to the extent of the estate of the deceased. 

However, ambiguities arise over the application of Order XXII Rule 2 and Rule 4 wherein the liabilities of the deceased and surviving defendants were joint and inseverable. These complications crop up due to the cause of action being joint and indivisible. Joint liabilities emerge when two or more persons are bound by a single legal obligation towards a common purpose. For instance, joint executors of a will mismanage the estate of the deceased or co-authors of a book in breach of a deadline of the publishing contract. In such cases, a suit for breach can only be pursued against all the defendants jointly and collectively, wherein the liabilities of the defendants cannot be severed. 

Therefore, ambiguity arises in the application of Order XXII Rule 2 in cases where the liability of the deceased and surviving defendants is joint and inseverable. Presuming that under Order XXII Rule 2, the suit is only abated as against the deceased defendant, the decree passed under the suit would be unfair and unjust as against the surviving defendant due to the inseverable nature of liability. Since the liability is inseverable, proceeding with the suit only against the surviving defendants would effectively impose full liability on them, which they alone were not originally meant to bear. Therefore, the decree so passed would be inequitable and unenforceable, given the indivisible nature of the liability.

Alternatively, if Order XXII Rule 4 is resorted to and legal representatives of the deceased are brought on record, any decree passed concerning joint and inseverable liability raises procedural and substantive concerns. While Order XXII Rule 4 allows for substitution to avoid abatement, in circumstances of inseverable liability, it may undermine the very principle it aims to protect, i.e. fair and enforceable adjudication of rights in a suit. The inclusion of legal representatives in such cases may result in procedural friction due to the intertwined nature of obligations of the original party. As a result, the substitution of a deceased with a legal representative may not preserve the nature of the cause of action. Inferring from Section 50 and Section 52 of CPC, a legal representative does not inherit joint or personal obligations of the deceased. Rather, legal representatives are liable only to the extent of the estate of the deceased.  Consequently, their presence may not cure the defect caused by the death of a necessary party in a case involving inseverable liability. Such substitution, therefore, risks creating an artificial continuity in the proceedings, treating the legal representative as capable of discharging a liability that was never truly transmissible.

Therefore, application of Order XXII Rule 2 and Rule 4, in case of joint and inseverable liability, suffers from inherent ambiguity, resulting in a lack of consistency and undermining the delivery of substantive justice. 

Determining Suit Viability

The application of Order XXII Rule 2 and Rule 4 of the CPC in cases involving joint and inseverable liabilities must be examined in light of the judicial principles and tests evolved by the courts. Courts have consistently held that the omission or absence of a necessary party defeats the very purpose of adjudication and renders any decree passed either void or ineffective. A necessary party is one without whose joinder no effective decree can be passed, making their presence indispensable to the proper adjudication of the suit. 

Furthermore, the Supreme Court in State of Punjab v. Nathu Ram held that a suit must abate in its entirety if the deceased party's absence would result in (a) a contradictory decree, (b)when the suit could not have been brought for the necessary relief against those defendants alone who, are still before the court, or (c) an ineffective or unenforceable decree, if the suit succeeds. These criteria strictly govern the procedural viability of continuing proceedings post-death of a defendant.  

These principles are of particular relevance in cases involving joint and inseverable liability. Applying the tests in this context, firstly, the decree passed against only surviving defendants would be contrary to the decree that had become final as against the predeceased. This is due to the fact that joint liability presupposes integrated obligations shared among all the defendants. Isolating one or more defendants would distort the original legal relationship among the defendants as well as between defendants and plaintiffs, thereby resulting in inconsistent decrees. 

Secondly, the suit is not maintainable as against the surviving defendants alone in cases of inseverable liability. In such circumstances, the cause of action is indivisible and requires the presence of all parties for proper adjudication. Proceeding without the deceased party alters the scope and nature of the legal claim, and thereby defeats the basis of the suit.

Thirdly, any decree passed in the absence of the deceased co-defendant would be ineffective or incapable of execution. A decree imposing joint liability cannot be enforced against only a part of the jointly liable group without violating the principle of collective responsibility. Since legal representatives of the deceased are liable only to the extent of the estate and not for personal or joint obligations arising from the deceased's specific conduct, the enforceability of such a decree becomes illusory.

Therefore, in cases of inseverable liability, the death of a co-defendant strikes at the source of the cause of action, making effective adjudication impossible in their absence. Considering that co-defendants who share inseverable liabilities become necessary parties, the absence of the deceased defendant would effectively mean non-joinder of a necessary party and the suit must be wholly abated in such circumstances. 

Considering the indivisible nature of joint and inseverable liabilities, the procedural scheme under Order XXII must expand beyond formal substitution. Existing provisions offer no coherent scheme/mechanism to deal with the resulting procedural void. There is a need to clear out the air with respect to the ambiguity created in the existing code. Procedural reforms, either through judicial principles or legislative clarification, are essential to prevent fractured adjudication and to preserve the enforceability of decrees in such cases.

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