P L D 1957 Dacca 367 (PLP)

AMIN AHMED, A. C. J. This application in revision under section 115 of the Code of Civil Procedure is directed against an order of the Subordinate Judge, Mymensingh, under Order XXII, rule 4 (4) of the Code of Civil Procedure, exempting the plaintiffs from substituting the heirs of the deceased respondent No.

48. The only point for consideration in this case is whether the Court below acted illegally and with material irregularity in exempting the plaintiffs from substituting the heirs of the deceased defendant No. 48 after the period of limitation of 90 days for substitution of heirs expired. Mr. Bhattacherjee who appears for the defendant petitioner has strongly relied on the provisions of sub‑rules (3, and (4) of Rule 4 of Order XXII of the Code of Civil Procedure. Order XXII, rule 4, runs thus: "4 (1) Where one of 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 an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub‑rule (1), the suit shall abate as against the deceased defendant except as hereinafter provided. (4) The Court, whenever it sees fit, may exempt the plaintiff from the necessity of substituting the legal representative of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." The learned Advocate contends that in allowing the applica tion for exemption the learned Subordinate Judge clearly acted contrary to the provisions contained in sub‑rule (3) of Order XXII which relate to an application for substitution in case of the death of a party or parties for the purpose of saving abatement; that sub‑rule (4) which is an amend ment introduced by the High Court and came into force by Notification No. 3905‑G of 2nd April, 1938, read with sub -rule (3) will clearly show that the latter amendment only enables a plaintiff who is affected by the death of one of the parties in suit to save abatement by obtaining an order of exemption from substitution of the heirs of the deceased party; and that this is an alternative procedure in certain cases, those cases being of deceased parties who did not file a written statement or failed to appear and contest the suit at the time of the hearing of the suit. In other words it is urged that to save an abetment before the expiry of 90 days it is open to a party to make an application for the sub stitution of the heirs of the deceased party, but on account of the amendment the party can also save abatement by making an application within the period of 90 days from the date of the death of the deceased party for exemption from substitution of the heirs of the deceased party. In support of his contention, the learned Advocate has relied on the following cases; the case of Sree Sree Sankari Prasad Singh Deo v. Kanai Lai Roy and others (52 C W N 599), a decision of Chakravartti, J. (as his Lordship then was) sitting singly decided on the 20th of February, 1948; the unreported case of Tamiruddin Sakhidar and others v. Raufannessa Bibi and others (S A 1778 of 1944 (unreported)), a decision of Ibrahim, J. of our Court sitting singly, decided on the 1st of April, 1953; the unreported case of Barimulla Mondal v. Gazi Rahman Mondal and others (F A 59 of 1948 (Dacca)) a decision of a Division Bench of this Court, to which one of us is a party, decided on the 5th of March 1954 ;the case of Rani Gopal Mukherji v. Panchanan Mukherji and others (59 C W N 304) decided on the 13th of July 1954, by Das Gupta and Debabrata Mookerjee JJ., and the unreported case of Nanu Khan and others v. Moktarerma and others (S A 454 of 1950 (Dacca)), decided by my learned brother Rahman J., sitting singly, on the 15th of June 1955. In answer to our question put to Mr. Bhattacharjee the learned Advocate also placed before us the case of Lakshmanan Chettiar and others v. Chidambaram Chettiar and others (A I R 1935 Mad. 236), in which an application under Order XXII, rule 4 was allowed after the period of substitution had expired. Mr. Hossain who appears for the opposite‑parties argues that inasmuch as the word application does not occur in sub‑rule (4) of Rule 4 of Order XXII of the Code of Civil Procedure and, on the other hand, it is expressly stated that the Court may exempt a party from the necessity of sub situating the legal representatives "whenever it sees fit" these latter words connote that the Court, irrespective of any application for substitution of the heirs of a deceased party within 90 days or irrespective of any question of abatement, may at any time exercise its discretion for exemption in those cases where the deceased defendant has not either filed a written statement or has failed to appear and contest the suit at the time of the hearing. It is further urged that as the words "except as hereinafter provided" have been added in sub‑rule (3), and sub‑rule (4) has been inserted separately, it must be taken that the Legislature intended to give an additional relief to the plaintiff in those cases when one of the defendants dies, and the plaintiff fails to make an application for substitution within the prescribed period of 90 days; and that in certain cases like the present one it is still open to the Court whether any application is made or not, to exempt the plaintiff from substituting the heirs of the deceased party altogether. The learned Advocate also points out that the case of Sree Sree Sankari Prasad Singh Deo v. Kanai Lai Roy and others is distinguishable, and cannot help the petitioner as in that case the Court refused to set aside an order of abatement on the ground that the order of abatement was actually recorded by the Court; that in the present case no such order was made by the Court, and there was an abatement owing to the expiry of 90 days. Reliance has also been placed by the learned Advocate on the case of Lakshmanan Chettiar and another v. Chidambaram Chettiar, and others. It is claimed that although the provisions of the amendment contained in sub‑rules (3) and (4) of Order XXII, rule 4 are almost identical with those made by the Madras High Court, in the latter case of Lakshmanan Chettiar, even after the date of abatement an application for exemption was allowed Although there is a ruling of a Division Bench of this Court and also that of a single Bench presided over by Ibrahim J. in S. A. No. 1778 of 1944, we have examined afresh the point raised in the present case as on account of the wording of the amendment of sub‑rules (3) and (4) of Order XXII, rule 4 more than once different interpretations have been sought to be put on these amendments. We have also gone through the cases cited by the learned Advocates. In our opinion, the contention of the learned Advocate for the petitioner must prevail. Order XXII, rule 4 of the Code relates to a procedure in case of the death of one of the several defen dants or the sole defendant in a suit, and if all the sub- rules of Order XXII, rule 4 are read together, it will appear that sub‑rule (3) declares that the suit shall abate if no application under sub‑rule (1) for substitution of the heirs is made within the period of limitation or no application for exemption from the substitution of the heirs within the period of limitation for abatement as provided for in sub- rule (4) is made. Presumably exemption from substitution of heirs must be when the substitution is due and can be made, and not later on when on account of none‑substitution within time the suit together with the right to substitute has abated against a deceased defendant or defendants. It is true, as the learned Advocate for the opposite‑parties states, that at any time the Court can grant exemption from sub stitution in certain cases but this is subject to the Court having seisin of the suit relating to the deceased party, that is to say, that the word "whenever" in sub‑rule (4) means "at any time between the date of the death of a defendant and the date after the expiry of 90 days from the date of death". It is not correct to say, as contended by the learned Advocate for the opposite‑parties, that the suit or appeal abates only when it is recorded as such by the Court, for they abate automatically as soon as the period of 90 days from the death of a party expires. Therefore, it is expressly provided that in order to avoid abatement the plaintiff must move the Court for substitution or for exemption from substitu tion before suit or appeal abates in respect of a particular party; or, in a proper case the Court can even of its own motion and without any application grant such an exemption, but such an exemption must be granted before the expiry of 90 days. The scheme of the Code of Civil Procedure relating to abatement and setting aside abatement, will also lead to this construction. It will be found that Order XXII, rule 9 expressly provides for setting aside abatement. It cannot be said that although the suit has abated against a party because of the provisions of sub‑rule (3) read with sub‑rule (4). it is still open to the Court subsequently at any time after abatement before the disposal of the suit to grant exemption from substitution of the heirs of such a party, and then revive the suit against him and proceed with the entire suit against all the parties without the order of abatement being set aside. From the provisions of Order XXII, rule 4 as well as those of order XXII, rule 9 it is clear that the intention of the Legislature is that once a suit or appeal abates, it abates for all purposes until it is revived by setting aside such an abatement. We may mention that the arguments that have been advanced at the Bar on behalf of the opposite‑parties were also considered by their Lordships in the case of Nani Gopal Mukherji v. Panchanan Mukherji and another, and also in the unreported case of Tamiruddin Sakhidar and others v. Raufannessa Bibi and others. The case of Lakshmanan Chettiar and another v. Chidambaram Chettiar and others, was considered by Ibrahim, J. in the latter case of Tamiruddin Sakhidar and others. In our opinion, it is rightly observed by Ibrahim J. in the case of Tamiruddin Sakhidar that the case of Lakshmanan Chettiar and another v. Chidam baram Chettiar and others, the point taken in this appeal was not specifically raised at the time of hearing of that appeal. With due respect we agree with the following observations of Ibrahim J. in the above unreported case of Tamiruddin Sakhidar "But I must say that my view is that no exemption can be granted under sub‑rule (4) after abatement. That, to my mind, is very clear. The procedure to be followed after an abatement is Rule 9 of Order XXII. The question f of substituting the legal representatives cannot arise after an abatement, for the suit of appeal having abated, there is nothing on which they can be substituted. Any talk of exemption at that stage is thoroughly irrelevant." We would also like to refer to the following observations in the unreported case of Barimulla Mondal v. Gazi Rahman Mondal and others to the decision of which one of us is a party: "It appears to me from the different provisions in Order XXII that sub‑rules (3) and (4) of Order XXII, rule 4 have reference to a stage when the suit has not abated. Sub‑rule (3) of Rule 4 as amended provides that if no application is made under sub‑rule (1), the suit shall abate as against the deceased defendant except as herein after provided', and that exception is provided for in sub rule (4) which may be stated as "If the Court does not exempt the plaintiff from making substitution. Therefore, the effect of two sub‑rules (3) and (4) when read together, appear to me that upon the death of a defendant, the suit shall abate unless an application under sub‑rule (1) for substitution is made within the prescribed period of 90 days under Article 177 of the Limitation Act or unless the Court exempts the plaintiff from substituting the legal representatives of the deceased defendant under sub rule (4). So, both the exceptions refer to circumstances which will avert an abatement or prevent it from occurring, and, therefore, it must be earlier in time, that is, before abatement takes place." As to the unreported case of Nanu Khan and others v. Moktarerma and others, we have gone through the judgment but it seems that in that case my learned brother Rahman J. has not decided this point. So, we need not discuss that case. So, we hold that the learned Judge acted illegally and with material irregularity in allowing the application for exemption under Order XXII, sub‑rule (4) of Rule 4 of the Code of Civil Procedure after abatement. The Rule is, therefore, made absolute with costs. Before we part with this case, we may mention that after conclusion of the arguments, the learned Advocate for the opposite‑parties prayed that in the event of our making the Rule absolute, we might make an order giving the opposite‑parties liberty to make an application for setting aside an abatement. As to that we do not wish to say anything except that his clients are always at liberty to make an application for setting aside an abatement, if so advised and when such an application is made, the Court will consider it on its own merits. REHMAN, J.‑

I agree. Rule made absolute.