GIRDHARI LAL Vs. LAXMINARAIN

JUDGEMENT

(1.) The learned Civil Judge, Baran by his order, dated, 19th December, 1987 has allowed the application of the opposite party moved under Order 22 Rule 4(4) C.P.C. It is this order, which has been challenged by the defendant-petitioners.

(2.) The brief facts are that the opposite party filed a suit against several defendants and during the pendency of the suit, defendants Nos. 4 and 5 died and their legal representatives were not brought on record. On 4-8-1987 the remaining defendants moved before the court that two of the defendants had died and their legal representatives had not been brought on record. Therefore the suit should be dismissed as lowing abated. It was then that on 12-8-1987 the plaintiff non-petitioner moved an application for claiming exemption from substituting the legal representatives of these defendants who had died as they had failed to file written statements and contest the suit.

(3.) The learned counsel for the petitioner has argued that abatement is a general law and a suit abates automatically without any order of the court and when such abatement taken place the party has to move the court for setting aside the abatement before any other order could be passed. In other words his contention is that the exemption from substituting legal representatives could have been given only after setting aside the abatement. According to him, the suit was dead and unless life was first infused in it there was no question of proceeding with it.