NACHAMMAL Vs. MARAKATHA AMMAL

JUDGEMENT

(1.) The only question involved in this revision by defendants 5 to 67 is as to whether the court has jurisdiction to pass an order under Order XXII R.4(4) C.P.C. after the suit has abated as against the deceased defendant under Order XXII R.3.

(2.) The suit is for partition of properties left behind by the husband of the 5th defendant and father of defendants 6 and 7. Plaintiff and defendants 1 to 4 are brothers and sisters of the deceased. The 4th defendant was ex parte in the suit and he died on 24-10-1988 leaving behind his widow and son. Plaintiff filed two applications on 12-5-1990; LA No. 1478/90 for exempting her from impleading the legal representatives of the 4th defendant, under Order XXII, R.4(4) and LA. No. 1479 for consequential amendment of the plaint. These were objected to by the revision petitioners on the ground that such an order cannot be passed after the suit had abated as against the 4th defendant. This objection was overruled and exemption granted by the Trial Court. Revision is against the above order.

(3.) As stated earlier, the only question is as to whether the court has jurisdiction to pass an order under Order XXII, R.4(4) after the time for impleading the legal representatives under the Limitation Act is over. There is a conflict of opinion among the High Courts on this question. Order XXII R.4(4), so far as Kerala is concerned, came into force Only by the Civil Procedure Code Amendment Act, Act 104 of 1976. But in some other States even before the Central Amendment, there were local amendments by which a similar provision was incorporated in the respective Code of Civil Procedure. Counsel for the revision petitioners relied on the decisions in Lakshmi Charan v. Satyabadi (AIR 1964 Orissa 39), Annapurna v. Harsundari (AIR 1975 Calcutta 12) and ILR 1974 Gauhati 289 for the position that an order under Order XXII R.4(4) cannot be passed after the suit had abated as against the deceased defendant. Counsel for the 1st respondent relied on the decisions in Velappan v. Parappan ( AIR 1969 Mad. 309 ), S.A. Rahim v. Rajamma (AIR 1977 Karnataka 20), Nepal Chandra v. Rebati Mohan (AIR 1979 Gauhati 1) and Janabai Ammal v. T. A. S. Palani Mudaliar ( AIR 1981 Mad. 62 ). The question is as to whether the court has jurisdiction to grant exemption under Order XXII R.4(4) after the suit has abated.