NANI GOPAL MUKHERJEE Vs. PANCHANAN MUKHERJEE AND ANOTHER

JUDGEMENT

(1.) The question in this case is whether an exemption under Order XXII, Rule 4(4) of the Code of Civil Procedure 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 Dec. 6, 1952. No application for substitution of his heirs was made within the time allowed by law. On May 7, 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 May 8, 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 thought 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 the 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, Subordinate 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 XXII, 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 take place.