Full Judgment
A. Pasayat. J.
1. In a suit for recovery of money filed by United Bank of India (in short, 'the plaintiff') present petitioner Jayanta Kumar Das was defendant No. 2 and one Harekrushna Behera was defendant No. 1. Plaintiff's case in short was that the said Harekrushna Behera had availed loan from the plaintiff for purchase of a Bus. Apart from other securities, defendant No. 2 stood as a guarantor for repayment. As there was default in repayment, plaintiff filed Title Suit No. 277 of 1988-II before the learned Additional Subordinate Judge, Balasore as the Court was then designated. Though notice was sufficient on Harekrushna, and he appeared on several dates, he chose not to file written statement and after a certain stage did not participate in the proceeding. Accordingly he was set ex pane. Subsequently he died while the suit was pending. Defendant No. 2 petitioner filed an application for bringing on record legal representatives of Harekrushna. The motive was objected to by the plaintiff, stating that choice of bringing a party on record is that of the plaintiff as clearly stipulated under Order 22, Rule 4(4) of the Code of Civil Procedure, 1908 (in short 'the Code'), and there was no scope for bringing on record the legal representatives of defendant No. 1 on the motion made by defendant No. 2. The stand was accepted by the learned Additional Subordinate Judge by the impugned order.
2. It is to be noted here that since no reasons were indicated by the learned Additional Subordinate Judge while rejecting the prayer, this Court by order dated 25-6-1993, had directed him to pass a reasoned order which has been done and reasons have been indicated by order dated 20-8-1993.
3. Mr. D. Nayak, learned counsel for petitioner submits that a too technical view has been taken by the learned Additional Subordinate Judge and no prejudice would have been caused, had the legal representatives been brought on record. In any event, it is submitted that the legal representatives of Harekrushna have notice of the suit as they have been impleaded in the present proceedings. Except one of the legal representatives who has appeared through counsel, others have not entered appearance.
4. Stand of the plaintiff is that the death of a defendant who has not filed written statement is of no consequence as is clearly provided in Sub-rule (4) of Rule 4 of Order 22.
5. Since the dispute revolves round the scope and ambit of Order 22, Rule 4, Sub-rule (4), same needs to be extracted. It reads as follows :
'(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.'
Sub-rule (4) of Rule 4 is a new introduction to the Code. Several High Courts including this Court had introduced similar Sub-rule (4) before the amendment was brought into by the Code by 1976 Amendment Act. The object of the sub-rule is to avoid unnecessary delay. It confers discretion on the Court to dispense with the necessity of substituting legal representatives of a defendant (a) who has failed to file written statement, or (b) who having filed it has failed to appear and contest the suit. The scope of an order off exemption takes away the impact of Sub-rule (3) of the rule that is with regard to abatement. Sub-rule (4) provides that in a case where the Court has exempted the plaintiff from the necessity of substituting legal representatives of any defendant who has either failed to file written statement or who having failed it has failed to appear and contest the suit at the time of hearing. Pronouncement of judgment against such defendant, notwithstanding his death, shall have the same force and effect as if it has been pronounced before death took place. In other words, a judgment pronounced in a case where defendant, who has either failed to file written statement or having filed it, has failed to appear and contest at the time of hearing, has same effect and force as if he was alive at the time of judgment. By legal fiction the deceased defendant would be deemed to be living. The question of abatement envisaged under Sub-rule (4) of Rule 4 has no application to such case. The underlying intention behind Sub-rule (4) is that a plaintiff need not be asked to file an application for bringing on record the heirs of a deceased defendant when he has not taken any active interest in the suit. Granting of exemption has nothing to do with the right of the legal representatives of moving an application for being brought on record. On their being bought on record, the suit will proceed on merits and that will not entitle impleaded representatives to urge that the suit had abated. Since the Court has exempted the plaintiff from the necessity of substituting legal representatives, giving reasons therefor, interference is not called for.
The Civil Revision is without any merit and dismissed. Send back the records immediately.