P. Chandra Reddi, C.J. - (1.) THE question for consideration in these petitions is whether sub -rule (4) of R. 4 of Order 22, C.P.C. could be invoked in this case. The petitioner (plaintiff) filed a suit for a declaration that he is the adopted son of one K. Ramayya and for possession of the properties in dispute to which he impleaded defendants 5 to 11 the alienees of the properties from the widow of Ramayya. All these defendants filed written statements and took part in the first hearing of the suit, namely, settlement of issues. It appears that subsequently, the 14th defendant died. This does not seem to have been noticed by the plaintiff. Further hearing of the suit went on subsequently and it was dismissed against defendants 5 to 14. It is against this judgment that the plaintiff seeks to file an appeal in forma pauperis. Pending the application, the appellant wants to bring on record the legal representatives of the 14th defendant on record.
(2.) IT is argued by Sri Tatachari, learned counsel for the appellant, that the appellant can maintain this application notwithstanding the fact that the 14th defendant died before judgment was delivered by reason of sub -rule (4) which says: The Court, whenever it sees fit, may exempt the plaintiff from the necessity to substitute the legal representative of any such defendant who has been declared ex parte or who has failed to file his written statement or who having filed it, has failed to appear and contest at the hearing; and the 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. We do not think that this rule can be of any avail to the appellant. It must be borne in mind that apart from the question whether the expression "at the hearing'' could be equated to the whole of the hearing of the suit and whether this court could perform the functions of the trial Court in this behalf, this rule is inapplicable to the present case for the reason that it applies only to cases where discovery is made before judgment is pronounced. That this is the intent of the legislature could be gathered from the clause which says. and the 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 it has been pronounced before death took place. Therefore this rule comes into operation only in cases where the plaintiff learns that the death of one of the defendants took place before judgment is delivered and the Court is invited to enter judgment against that defendant also. Further this has nothing to do with the bringing on record the legal representatives of a defendant. That only provides for exempting the plaintiff from substituting the legal representatives in fit and proper cases. In these circumstances, we feel that the sub -rule does not render any service to the appellant and the petitions have to be dismissed. Rupees 35/ - deposited in this Court by the appellant will be paid to Sri Krishna Rao who appeared as amicus curiae.;