No abatement prior to judgment in certain circumstances

“No abatement prior to judgment in certain circumstances”

Order 22 Rule 4(4) of CPC:

“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 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 same force and effect as if it has been pronounced before death took place.”

Notes:

(1) This provisions of Or. 22 R 4(4) are applicable to appeal as well as to suit and the power to exempt under the said sub-rule can be exercised at any time before the judgment, even after the abatement has taken place. (AIR 1969 Mad 309);

(2) The sub-rule (4) has not specifically insisted on the filing of an application for exemption, unlike some of the other provisions in the Code of Civil Procedure making the filing of an application obligatory for obtaining any orders from the Court under this rule. (AIR 1969 Mad 309, this judgment was pronounced based on the High Court of Madras Amendment (in 1927) of Order 22 Rule 4(4));

(3) The decision in the case of Janabai Ammal v. TAA Palani Mudaliar, AIR 1981 Mad 62 has been decided after the Central Amendment Act 104 of 1976 in CPC.

(4) If we read the rule 4(4) on the basis of Rule 11, there may not be any defect or bar in disposing of the appeal even without bringing the legal representatives of the deceased, who was property served notice from this Court prior to his/her death. (Vasudeva Naicker v. TA Madhavan, 1997 (III) CTC 63);