ELISA Vs. A DOSS

JUDGEMENT

(1.) Respondent herein filed O.S. No. 970 of 1989 against one Vincent for recovery of certain amount due on a promissory note. The suit was filed in April 1989. Summons was served on the defendant on 22-5-1989. The defendant did not enter appearance in the suit. He died on 16-8-1989. The suit was decreed ex parte on 1-9-1989. The respondent herein filed a petition on 20-9-1989 for execution of the decree. In the execution petition, the petitioners herein were shown as respondents as the legal representatives of the deceased defendant. As soon as the notice in the execution petition was served on the petitioners, they filed an application under S. 47 of the Civil Procedure Code in E.A. No. 1732 of 1989 for dismissing the execution petition on the ground that the decree dated 1-9-1989 was null and void, and it was passed against a dead person. The executing Court has dismissed the application taking the view that the provisions of Order 22 Rule 4, CPC could be applied to the case. Aggrieved by the said dismissal, the present revision petition has been filed.

(2.) Order 22 Rule 4, CPC reads thus :

(3.) It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of sub-rule (3). Sub-rule (4) provides an exception to sub-rule (3). Under sub-rule (4), it is open to the Court to pass an order exempting the plaintiff from the necessity of bringing on record the legal representatives of any defendant, who had failed to file a written statement or if having filed the written statement, failed to appear and contest the suit at the hearing. But, the language of sub-rule (4) is clear enough to show that the Court must pass an order exempting the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application seeking such exemption, as the rule does not require one. Under the said rule, the Court must apply its mind and think it fit, in the facts and circumstances of the case, to grant the exemption. For granting such exemption, the defendent who died should have remained ex parte, either without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall be passed before a judgment in the case is pronounced. The relevant portion of the said rule reads that the Court 'may exempt the plaintiff' and 'judgment may, in such case pronounced.' That part of the sub-rule says that the order of exemption should precede the judgment to be pronounced in the suit. Sub-rule (5) provides for an application to set aside the abatement caused by the failure of the plaintiff to bring the legal representatives of the deceased defendant on record within the time prescribed by law. As stated already, under sub-rule (3), the suit shall abate. Sub-rule (5) provides that even in cases where the suit has abated, it is open to the plaintiff to file an application to the abatement set aside on the grounds mentioned in the said rule. Clause (a) of sub-rule (5) provides for a situation where the plaintiff was ignorant of the death of the defendant and Clause (b) provides that where an application is filed after the expiry of the period specified therefor in the Limitation Act, S. 5 of the Limitation Act could also be invoked. Thus, Rule 4 of Order 22 is comprehensive enough to deal with a situation where the defendant died after institution of the suit and before passing of the judgment.