In the Indian legal system, it is imperative for the court to follow the due process of law when it comes to substituting a legal representative of a deceased defendant. The court’s permission is required to remove, add or substitute a party once the claim form has been served (as per the Civil Procedure Code, Order 22, Rule 4). An application for permission can be made by an existing party or a person who wishes to become a party. In general, claimants are entitled to pursue the defendants they wish, and cannot be required to bring in additional parties to the lawsuit.
However, when a party dies after a notice of appeal has been filed or while a proceeding is pending in the court of appeals, the deceased party’s personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party. The motion must be served on the representative in accordance with Rule 25 of the Federal Rules of Appellate Procedure.
When no application for substitution of the legal representative of the defendant is made within the period specified in the Limitation Act, 1963 (36 of 1963), the suit may abate as a result. In such a case, if the plaintiff applies after the expiry of the period specified in the Limitation Act, the court may exempt the plaintiff from substituting the legal representative of a non-contesting defendant and may pronounce the judgment notwithstanding the death of such defendant.
The Limitation Act, 1963 specifies a time limit of 90 days for making an application for the substitution of the legal representative of the deceased defendant. If no application is made within the prescribed time limit of 90 days, the suit shall abate as against the deceased defendant. In such cases, the court may exempt the plaintiff from substituting the legal representative of a non-contesting defendant and may pronounce the judgment notwithstanding the death of such defendant.
When an application for substitution of the legal representative is made within the specified time limit, the court shall make the person a party and proceed with the suit. Any person so made a party may make any defence appropriate to his character as the legal representative of the deceased defendant.
It is important to note that when a suit abates as against a deceased defendant, it does not mean that the suit has been dismissed in its entirety. The suit may still proceed against any surviving defendants. However, the judgment in the suit may not be binding on the estate of the deceased defendant.
In conclusion, when it comes to substituting legal representatives in India, the court must follow the due process of law. The Limitation Act, 1963 specifies a time limit of 90 days for making an application for substitution of the legal representative of a deceased defendant. If no application is made within the specified time limit, the suit may abate as against the deceased defendant. In such cases, the court may exempt the plaintiff from substituting the legal representative of a non-contesting defendant and may pronounce the judgment notwithstanding the death of such defendant.
