N MANGATHAYARAMRAA Vs. N APPANNA

JUDGEMENT

(1.) Admittedly it was reported in a Memo filed by the counsel for the first plaiatiff that the counsel for the 149th defendant stated that his client died on September 5, 1982, the case is at the trial it would needlessly prolong the matter and at this stage it is not necessary to bring the legal representatives of the defendant 149. Subsequently, another Memo was filed on December 1, 1987 stating that they are not bringing the legal representatives of the 149th denfedant on record. When the matter is in progress, one of the defendants filed an application to dismiss the suit as having been abated on account of the failure to bring on record th^ legal representatives of the 149th defendant. At this stages I.A. No, 612/1987 was filed by the petitioners/ plaintiffs seeking exemption under Order 22 Rule 4 (4) of the Code of Civil Procedure, 1905, as amended in the 1976 Amendment Act. The lower Court dis" missed the application as agianst which the present revision has been filed.

(2.) The contention of Sri Venkataramaiah, learned Counsel for the petitioners is that the Court below committed error of jurisdiction in refusing to give exemption and the order is vitited by material irregularity in exercise of its jurisdiction warranting interference.

(3.) Sri Pattabhirama Rao, learned Counsel for the contesting respondents resisted contending that on two occasions the petitioners filed Memos refusing to bring the legal representatives of the 149th defendant on record. After the suit having been abated as against all the Defendants, the present application has baen filed. Therefore, the Court below is well justified in refusing to give exemption. The question therefore, is whether the petitioners could be exempted from substituting the legal representatives of the 149th defendant. Order 22 Rule 4 CPC provides the procedure in case of death of one of several defendants or of sole defendant. Rule 4 (1) postulates that where one of the two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. Thereby it is mandatory that in case one of the several defendants dies and the right to sue does not survive against other surviving defendants, it shall be the duty of the plaintiff to make an application to the Court in this behalf and the Court shall cause the legal representative of the deceased defendant to be made a party and then the Court shall proceed with the suit. Besides this general power and the right, Clause (4) of Rule 4 provides exemption which is material, reads thus: