Sabhahit, J.
1. Pursuant to the reference made by a learned single Judge of this Court, Hon'ble the Chief Justice has placed this Miscellaneous second appeal for disposal before this bench as it involves a question of law of considerable importance.
2. The question of law arises this way :
Plaintiff instituted L. C. No. 224 of 1967 for possession and for mesne profits against four defendants. Defendant 3 was duly served but remained absent and he was Placed ex parte on 2-9-1968 by the Principal Munsiff, Ranebennur, before whom the suit was instituted and was pending for hearing. The suit was subsequently dismissed on 2-6-1971 for default of the plaintiff. Plaintiff instituted Miscellaneous Application No. 6 of 1971 on 17-6-1971 before the learned Munsiff. Defendant 3 remained absent again in the proceeding and he ultimately died on 23-3-1973. The miscellaneous application was allowed on 29-91973 and the suit was restored to file on 15-10-1973. In the suit, I. A. No. II was instituted on 23-1-1974 to bring the legal representatives of defendant 3 on record and I. A. No. III was instituted by defendants 1 and 2 in the suit to dismiss the suit as abated as the legal representatives of defendant 3 were not brought on record in time and no application was given before the learned Munsiff to set aside the order of abatement. Accordingly, I. A. No. II was dismissed and I. A. No. III was allowed and the suit came to be dismissed as abated. Against that judgment and decree, the plaintiff filed Regular Appeal No. 185 of 1974 before the Civil Judge, Haveri. Therein, the plaintiff filed I. A. No. IX under O. XXII, R. 4 (4), Civil P. C. with a prayer to exempt him from bringing the legal representatives of defendant 3 on record. The learned Appellate Judge allowed the interlocutory application, granted exemption and on hearing, allowed the appeal, set aside the judgment and order of the trial Court And remanded the suit for fresh disposal, in accordance with law, to the learned Munsiff. Aggrieved by the said judgment and order, some of the legal representatives of defendant 1 and defendant 2 hive instituted the above second appeal before this Court.
3. The learned counsel appearing for the appellants strenuously urged before us that the learned Civil Judge had no jurisdiction to exercise the powers contemplated tinder O. XXII, R. 4 (4), Civil P. C. as amended by the Amending Act of 1976.
4. As against that, the learned counsel appearing for the respondents plaintiffs argued supporting the judgment and order of the learned Civil Judge.
5.The sole question of law that arises for our consideration in this appeal is:
Whether the learned Civil Judge was competent to entertain the application under O. XXII, R. 4 (4), Civil P.C. exempt the plaintiff from bringing the legal representatives of defendant 3 on record ?
6. O. XXII, R. 4 (4), Civil P. C. reads :
'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.'
Thus, sub-rule (4) to R. 4 O. XXIL Civil P. C. makes it very clear that application shall be made before that Court where the proceedings . were pending at the time of the death of the concerned defendant.
7. This Court, in the case, Rahim S. A. v. Rajamma : AIR1977Kant20 , has explained that the Court is empowered by the express language of O. XXII, R. 4 (4) Civil P. C. to exercise the power of exemption whenever it thinks fit before the disposal of the suit, even though the request is made after 90 days after the death of the deceased defendant.
8 At any rate, it becomes obvious that the application should be made and the order should be made and the order should be passed by the concerned Court before the judgment in the case is pronounced.
9. In the instant case, defendant 3 died on 23-3-1973 when Miscellaneous Application No. 6 of 1971 was pending consideration before the learned Munsiff, Ranibennur. Therefore, the proper Court before which the application contemplated under O. XXII, R. 4 (4), Civil P. C. should have been was the Munsiff's Court Ranebennur. It could not lie obviously before the learned Civil Judge while hearing the appeal against the judgment and decree passed by the learned Munsiff, as narrated above. That is the contention raised before us by the learned counsel appearing for the appellants and we are of the considered view that there is substance in the submission so made.
10. Reading O. XXII, R. 4 (4), Civil P. C. carefully, we are of the view that the application for exemption to bring the legal heirs on record can be made before the Court before which an application for legal representatives could be made. The other conditions for giving such an application are that such defendant should have failed to appear before the Court on service of summons or having appeared he should not have filed the written statement or having filed the written statement he should fail thereafter to appear and contest the suit at the hearing. In such circumstances, the application for exemption could be made by the plaintiff to exempt him from bringing the legal representatives of such defendant on record. We, therefore, hold that such an application could not have been made before the Appellate Court and the question is what should have been the proper course for the Appellate Court to deal with such an application, if given?
11. The Appellate Court, in the interest of justice, should have, if it felt it necessary to do substantial justice, allowed the appeal and sent down the application for consideration by the trial Court as the same should have been given before the trial Court.
12. The next question that arises for our consideration is as to the stage at which the application for exemption under O. XXII, R. 4 (4), Civil P. C. should be submitted to the Court.
13. As stated above, this Court in the case, S. A. Rahim v. Rajamma : AIR1977Kant20 has held that the application could be given before the Judgment in the case is pronounced, differing from the view taken by the High Court of Orissa in the case of Lakshmi Charan Panda v. Satyabadi Behera, reported in : AIR1964Ori39 . This Court, relying on the decision rendered by the High Court of. Madras in similar circumstances, in. the case in Velappan Pillai v. Parappan Panickar, : AIR1969Mad309 , came to the conclusion by analysing O. 22, R. 4 (4), C. P. C. It has observed :
'Besides, it appears to me having regard to the language of sub-r. (4). which provides that the power of exemption under sub-r. (4) can be exercised by the Court. when ever it thinks fit, no such limitation on the power of the High Court in the matter of granting exemption can be inferred. The court is empowered by the express language in sub-r. (4) to exercise the power of exemption whenever it thinks fit before the disposal of the suit.'
The same view is taken in a more recent decision by a Division Bench of the Patna High Court in the case of Rajnath Sahgal v. Shiva Prasad Sinha, : AIR1979Pat239 . We respectfully accept the view taken by this Court earlier that the power of exemption could be exercised by the Court till the case is disposed of by pronouncing judgment, though the High Courts of Orissa and of Calcutta have taken the view that the said power of granting exemption can be exercised by the Court before abatement of proceeding takes place vide : AIR1964Ori39 and Annapurna Debi v. Smt. Harsundari Dassi : AIR1975Cal12 .
14. It may also be noted in this context that there is provision for setting aside the abatement in the C. P. C. by giving good reasons and limitation commences for the purposes of abatement from the date of knowledge. Such enabling provisions are not there in 0. 22 R. 4(4), C. P. C. Hence, we are persuaded to accept the view taken by this Court that the power of exemption can be exercised before the judgment is pronounced in the case, in view of the provision made economize in 0. 22, R, 4 (4), C. P. C.
15. Turning to the facts of the present case, the evidence on record shows that defendant No. 1 died on 23-3-1973 when the Misc. Application 6/71 was pending before the trial Court, No Steps, however, were taken by the plaintiff for bringing his legal representatives on record in the case. Therefore, it is obvious that all the proceedings in that Misc. Application after the death of defendant 3 would be rendered nu1lity in the eye of law. (Vide Mrs. Gladys Court v. Dharkhansing, : AIR1956Pat373 ). That being so all the proceedings commencing from the order Passed in Misc. Application No. 6/71 would be a nullity and the same has to be set aside. Hence, it is obvious that the application given for exemption under O. 22, R. 4 (4), C.P.C., has to be dealt with y the Court sitting in Misc. Application No. 6/71 as the order in that proceeding is not yet passed as per law.
16. It may also be noted in this context that though the provision, namely, O. 22, R. 4 (4), C.P.C., were incorporated in the Civil P. C. by the Amending Act, 1976. The said provision already existed in the Civil P. C. applicable to Karnataka right from the year 1969. Hence, no argument, was advanced before us that the provision was not in existence at the time when the suit was filed or at the time when defendant 3 died in 1973. The amended provision was already existing in the C.P.C. in Assam, Andhra Pradesh, Calcutta, Madras and in Karnataka much earlier.
17. In the result, the appeal is allowed. The impugned judgment and decree as also all the proceedings subsequent to the death of defendant 3 in Misc. Application No. 6/71 including the order passed in Misc. Application and the judgment and decree passed thereafter by the trial Court and first appellate court in the proceeding are hereby set aside and I. A. .9 instituted in R. A. 185, of 1974 shall now to be considered in Misc. Application No. 6/71, by the Munsiff Court, Ranibennur and the Court shall proceed to dispose of the application in accordance with law in the light of observations made above. Accordingly, the appeal is allowed and the case is remitted back to the Munsiff Court, Ranibennur to proceed with the hearing of the Misc. Application No. 6/71 on considering the application given for exemption from bringing the legal representatives of defendant 3 on record vide 1. A. 9 in R. A. 185/74.
18. Parties are directed to bear their respective costs of the proceedings.
19. Parties are directed to be present before the trial Court on 29-8-1983 to take further instructions.
20. Send back the concerned records to the trial Court forthwith.
21. Appeal allowed.