Article 120 (Arts. 176 and 177 of the Act of 1908):
The period of limitation for an application under the Code of Civil Procedure, 1908 to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent, made a party is ninety days and the limitation commences from the date of death of the plaintiff, appellant, defendant or respondent, as the case may be.
Image Source: itwillpass.com
ADVERTISEMENTS:
Rule 3(1) of Order XXII of the Civil Procedure Code, 1908 provides that where one of the two or more plaintiffs dies and right to sue does not survive to the surviving plaintiff or plaintiffs alone or where a sole plaintiff or sole surviving plaintiff dies and the right to sue survives an application can be made for making the legal representatives of the deceased plaintiff parties to the suit. This is known of substitution of the legal representatives.
For the purpose of substitution has to be made to the Court where the suit is pending and the limitation for such application is 90 days from the date of death of the plaintiff. The provisions of Rule 3 of Order XXII of the Civil Procedure Code, 1908 also applies for substituting the legal representatives of the deceased appellant and the application for substitution is to be made before the appeal Court where the appeal is pending.
There is no necessity for substitution of plaintiff when the plaintiff dies after the hearing of the argument and before delivery of judgment. When there are more plaintiffs and defendants on the death of one plaintiff, right to sue survives to the other plaintiff or plaintiffs or on the death of one defendant right to sue survives on the other defendant or defendants. So, there is no necessity to substitution. In Sri Nisabri v. Smt. Gayatri, (AIR 1990 HP 8), it has been held that there is no necessity to substitution and no question of abatement of the suit in such a case if the heirs of the deceased plaintiff or defendant are not substituted under Order XXIJ, Rule 3 or Rule 4.
In Madhu v. Soran, (AIR 1993 P&H 81), it has been held that when legal representatives of the deceased plaintiffs filed the application for impleading them as parties on the death of the deceased party, the application attracts Art. 120 of the Limitation Act and the application have to be filed within 90 days of the date of death of the deceased plaintiff.
ADVERTISEMENTS:
The expression legal representatives has been defined in Section 2(11) of the Code of Civil Procedure as follows: “Legal representative means a person who in law represents the estate of the deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.” It will include a person who seeks to represent the estate of the deceased on the basis of the Will alleged to be executed by the deceased in his favour.
Ordinarily all the legal representatives have to be brought on record. If one of legal representatives of the deceased plaintiff does not wish to be impleaded as plaintiff, he may be impleaded as a defendant.
When some of the legal representatives have been brought on record by substituting them under Order XXII of the Civil Procedure Code and any other legal representative is left out, the left out legal representative can see to be added as a party in the suit or appeal. For him the limitation shall be three years when the right to apply arises under Art. 137 and not 90 days of the date of death of the deceased under Art. 120 of the Limitation Act.
The starting point of limitation under Art. 120 is the date of death of the deceased party and not the date of knowledge of the date of death Under Art. 120 there is no question of any extension of time beyond 90 days.