ZAHIRUL ISLAM

MOHD. USMAN AND ORS.

DECEMBER 20, 2002

[SYED SHAH MOHAMMED QUADRI, ASHOK BHAN AND

S.B. SINHA, JJ.]

Code of Civil Procedure, I 908

4 I c Order 22, r.4(4) and Order 9, r. I 3-Death of defendant-Procedure- Suit-Proceeaed ex parte against defendant-2, who later died-Suit decreed ex parte against D-2-His legal representaYive seeking, under Order 9 r. I 3, stay of execution of decree-Application dismissed-Revision also dismissed by High Court-Held, plaintiff did not seek permission contemplated under D . sub-rule(4) of rule 4 of Order 22, from exempting him from bringing on record the legal representative of D-2-0rders of courts below set a,5ide - legal representative of D-2 is entitled to be brought on record in the suit.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 863 I of2002.

E From the Judgment and Order dated 11.1.2000 of the Delhi High Court in C.R. No. 25 of 2000.

Nafis A. Siddiqui for the Appellant.

Ms. Binu Tamta, Ms. V. Deepa for Ms. Indu Malhotra and Ms. Pratibha F Jain (N.P.) for the Respondents.

The following Order of the Court was delivered :

Despite service of notice, none appears for Respondent No. I.

G Leave is granted.

This appeal is filed against the order of the High Court at Delhi in Civil Revision Petition No. 25 of 2000 made on January 11, 2000.

The impugned order was passed by the High Court on the application. \ H 712

ZAHIRUL ISLAM v. MOHD. USMAN 713

of the appellant-legal representative of deceased Defendant No.2 who is said A to have died on Ist February, 1995. He sought stay of execution of the decree in proceedings under Order IX Rule 13 of the Code of Civil Procedure, 1908.

That application was dismissed. He approached the High Court by filing civil revision petition. The High Court dismissed the revision on the ground that the deceased Defendant No.2 had not chosen to appear before the trial court B and the matter proceeded ex-parte during his liftetime. The order of the High Court is under challenge in this appeal.

It would be necessary to refer to Order XXII Rule 4 of the Code of Civil Procedure, 1908, insofar as it i.s relevant, which reads as under:

"4. Procedure in case of death of one of several defendants or of sole defendant.-

(I) to (3) xxx xxx xxx

(4) The Court whenever it thinks fit, may exempt the plaintiff from D the necessity of substituting the legal representatives of any such defendant who has failed to file a wr!tten 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 E force and effect as if it has heen pronounced before the death took place."

A perusal of sub-rule (4), extracted above, shows that a plaintiff may be exempted from the necessity of substituting the legal representatives of a defendant who has failed to file a written statement or who, having filed it, F failed to appear and contest the suit at the hearing and that, in such a case, the judgment may be pronounced against the said defendant notwithstanding the death of such defendant and it shall have the same force and effect as if the judgment has been pronounced before the death took place.

In the instant case, it is stated by the learned counsel appearing for the appellant that no permission contemplated under sub-rule (4) was obtained from the court exempting the plaintiff from bringing on record the legal representative of deceased Defendant J:-Jo.2. From the order under challenge also, it does not appear that any such permission was sought or granted by

the Court. In this view of the matter, the order under challenge cannot be H

SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A sustained. It is, accordingly, set aside. The appellant was, therefore, entitled to be brought on record in the suit.

The civil appeal is, accordingly, allowed.

No costs.

B R.P.

Appeal allowed.

i. '