THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.2837 OF 2011 08.09.2011 Between: Pantham Venkatesh Kumar And others. … Petitioners AND Pantham Kamaraju Varma And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.2837 OF 2011 ORDER: The petitioners are defendants 5, 6, 9 and 10 in O.S.No.72 of 2000. The suit was filed by the first respondent herein for partition against sixteen defendants. Except defendants 5, 6 to 10, and 12 to 16, all other defendants remained ex parte. Defendants 5 and 13 filed written statements which were adopted by others. During the pendency, defendant No.12 died on 04.04.2003. The plaintiff filed I.A.No.961 of 2008 under Order XXII Rule 4 of the Code of Civil Procedure, 1908 (CPC) to bring on record legal representatives of deceased defendant No.12. The application was filed along with necessary application to condone the delay in filing the same. In the meanwhile on 12.08.2005, defendant No.11 also died. The plaintiff filed I.A.No.299 of 2009 to bring the legal representatives which is also pending. At this stage, second defendant who had remained ex parte died on 31.01.2010. Therefore, the plaintiff filed I.A.No.703 of 2010 under Order XXII Rule 4 of CPC praying the Court of Senior Civil Judge, Peddapuram to grant necessary exemption to the plaintiff from bringing the legal representatives of the deceased second defendant. By impugned order, dated 23.04.2011, the learned Senior Civil Judge allowed the application. Aggrieved by which, the present civil revision petition is filed. The counsel for petitioners would submit that when once the suit is abated against the second defendant, the Court below is precluded from exercising power under Order XXII Rule 4 of CPC and exempt the plaintiff from necessity of substituting the legal representatives of the deceased defendant. He relies on Lakshmi Charan v Satyabadi[1] and Pradip Narain Singh v Brij Nandan Prasad[2]. The suit was filed by the plaintiff for partition of the suit schedule property into sixteen equal shares. There were as many as sixteen defendants. During the pendency, defendants 11 and 12 died and he filed applications to bring the legal representatives on record, which are pending. In the meanwhile, the second defendant died, and therefore, the plaintiff filed I.A.No.703 of 2010 under Order XXII Rule 4 of CPC. The question that would arise is whether the Court below is in error in exercising jurisdiction and granting exemption to plaintiff from necessity of substituting the legal representatives of the deceased second defendant. Order XXII Rule 4 reads as under. 22. Death, Marriage and Insolvency of Parties 4. Procedure in case of death of one of several defendants or of sole defendant.— (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. (4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, 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. (5) Where— (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under Section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said Section 5, have due regard to the fact of such ignorance, if proved. A plain reading of the above would show that when a defendant dies, the Court may order the legal representatives of the deceased defendant to be made party and shall proceed with the suit, and such party is entitled to make any defence appropriate to his character as legal representative. If within the time limited and by law, no application is filed to bring the legal representatives of the deceased defendant, the suit shall abate as against the deceased defendant. In such a case, as per sub-rule (5) of Rule 4 of Order XXII of CPC, if necessary the plaintiff can make an application for condonation of delay in filing the application to bring the legal representatives. Further, it is necessary that under Order XXII Rule 10A, an advocate appearing for a party to the suit comes to know the death of that party, he shall inform the Court about it and the Court shall thereupon give notice of such death to other party to enable the other party to take necessary steps. Sub-rule (4) of Rule 4 of Order XXII confers power on the Court to exempt the plaintiff from necessity of substituting legal representatives in two circumstances, namely, when the defendant failed to file written statement and having filed written statement, failed to appear and contest the suit at the hearing. Reading sub- rules (3), (4) and (5) of Rule 4 of Order XXII harmoniously, it is very clear that sub-rule (4) does not lose its effect the moment the suit abates against the defendant. Sub-rule (4) is intended to take care of a situation where the defendant failed to file written statement and therefore, Order XXII Rule 4(4) is not a bar. Even otherwise by reason of sub-rule (5), the plaintiff can always file application under Section 5 of the Limitation Act seeking condonation of delay in filing the application to bring the legal representatives. Further, the suit shall abate if steps are not taken within the time limited by law. When the plaintiff was not informed by the defendants as required under Order XXII Rule 10A, the plaintiff cannot be denied the right to file an application under Order XXII Rule 4(4) of CPC. As seen from the record, second defendant died on 31.01.2010. He remained ex parte. The plaintiff filed an application on 05.08.2010. Though it is not clear as to when the plaintiff came to know about the death of the second defendant, in view of the fact that no such objection was taken nor the defendants informed the Court under Order XXII Rule 10A, the suit against second defendant cannot be said to have abated. The exercise of the power by the Court below, therefore, cannot be faulted. The civil revision petition is devoid of any merit and is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 08.09.2011 Pln [1] AIR 1964 ORISSA 39 [2] AIR 1988 PATNA 147