Das Gupta, J.:— The question in this case is whether an exemption under Order 22, rule 4(4) of the Civil Procedure Code can be given by a Court after a suit has abated. The suit in which this question has arisen was brought for partition against three defendants. One of the defendants, defendant No. 1 died on the 6th December, 1952. No application for substitution of his heirs was made within the time allowed by law. On the 7th May, 1953, the plaintiff filed an application in which he prayed that the abatement of the suit as against the deceased defendant No. 1 may be set aside and the heirs mentioned in the petition may be substituted. On the 8th May, 1953, the plaintiff filed another application praying for being exempted from substituting the heirs of the deceased defendant on the ground that this defendant had not filed any written statement in the case. The learned Subordinate Judge thoughts that it was enough that the plaintiff had filed this application before the order for abatement was passed, and passed an order exempting plaintiff from necessity of substituting the heirs of the deceased defendant.
2. Clearly, if the suit has abated, all the effects of abatement will ensue even though the court has not recorded a formal order that the suit has abated. The view of the learned Sub-ordinate Judge, that so long as a formal order of abatement has not been passed, the court may grant exemption, cannot be considered to be well-grounded.
3. It is contended, however, before us on behalf of the plaintiff that on a proper reading of sub-rules (3) and (4) of Order 22, rule 4, it should be held that the power given to the court to exempt the plaintiff from the necessity to substitute the legal representatives of a deceased defendant in certain cases continues even after the suit has abated as against the deceased defendant. Emphasis is laid on the words “whenever it sees fit” and it is argued that these words extend the time during which the court can give this exemption even beyond the date of abatement. It is also suggested that the effect of the words “except as hereinafter provided” that now occur at the end of Sub-rule (3) is that when an exemption is given the abatement will necessarily not taken place.
4. It sems to me, however, that this argument overlooks the sequence of events as contemplated in the rules. Sub-rules (2) and (4) of Order 22, rule 4, stand thus:
“(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, except as hereinafter provided.”
(4). the Court, whenever it sees fit, may exempt the plaintiff from the necesity of substituting the legal representatives of any such defendant who has failed to file a written statement or 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.”
5. The position clearly is that (1) where within the time limited by law an application for substitution has been made, the suit does not abate; (2) where no such application has been made within the time limited by law, the suit shall ordinarily abate; and (3) but this will be subject to the exception that in certain cases the court may exempt the plaintiff from substituting the legal representatives.
6. What is the position if the court has not passed any such order for exemption and also no application has been made within the time limited by law? I can see no escape from the position that in such a case, namely, where no application has been made for substitution under sub-rule (1) and or order for exemption has been made under the provisions of sub-rule (4), the suit shall abate.
7. Once the suit has abated there is nothing before the Court so far as the deceased defendant is concerned in which any order whether for exemption under sub-rule 4 or another order can possibly be passed. I cannot interpret the words, “whenever it sees fit” to mean at any time before the entire suit has been disposed of.”
8. The question now before us was considered though not decided by Chakravartti, J. (as he then was) in Sankari Prasad Singh Deo v. Kanai Lal Roy (1) (52 C.W.N 599). His Lordship observed:
“Although I have assumed above that the discretion under Order 22, rule 4(4) can be exercised even after an abatement has taken place, I am by no means certain that sub-rules (3) and (4) have not reference to a stage when the appeal has not yet abated. The sub-rules are addressed not to the setting aside of an abatement but to its prevention. Sub-rule (3) says that the suit shall abate if no application for substitution is made within the time limited by law, when it proceeds to state “except as hereinafter provided”, it only adds another exception and that exception is to be found in sub-rule (4) which may be summarised as “if the Court does not grant exception from making substitution.” The effect of the two sub-rules read together appears to be that upon the death of a defendant, the suit “shall abate”, unless an application for substitution is made in due time or unless the Court exempts the plaintiff from substituting the legal representatives of the deceased party. Both the exceptions thus refer to circumstances which will avert an abatement or prevent it from occurring and so must be earlier in time. The position where an abatement has taken place is dealt with by rule 9 of the Order and it is significant that the provision for exemption from, substitution is not placed under that rule, but under rule 4.”
9. His Lordship proceeded to say that it was not necessary in that case to decide the matter. As I have already indicated, however, I respectfully agree with the reasons given by his Lordships in that case and have coma to the conclusion that the Court's power to exempt under Order 22, rule 4(4) can be exercised only before an abatement has taken place and cannot be exercised after abatement has taken place
10. I would therefore make this Rule absolute, set aside the order passed by the learned Subordinate Judge and direct him to dispose of the application: that was filed by the plaintiff on the 7th May, 1953, for setting aside the abatement as against the deceased defendant No. 1 and substitution of the heirs, mentioned in his petition.
11. Parties will bear their own costs in this Court.
Debabrata Mookerjee, J.:— I agree.
S.N.S