Bimalendra Nath Maitra, J. - (1.) The learned Munsif considered the effect of not substituting the heirs and legal representatives of deceased defendant Nos. 1,3 and 4. The defendant's contention was that the suit abated as a whole. The learned Munsif heard the parties, gave effect to that contention and held that since the plaintiff failed to take any steps for substitution of the legal representatives of deceased defendant Nos. 1, 3 and 4 within the statutory time, the suit abated as a whole. Against that order, the present revisional application has been filed by the petitioner.
(2.) The learned Advocate appearing on behalf of the petitioner has contended that in view of the amendment made to Order 22, Rule 4(4) of the Code of Civil Procedure, by the amending Act of 1976, the Court has unfettered power to grant exemption to a party to make any substitution, where the deceased defendants did not appear and contest the suit. Previously, the provision of Rule 4(4), as amended by the Calcutta High Court, was controlled by those of sub-rule (3), which used the expression at the end "except as hereinafter provided". But the aforesaid expression appearing at the end of sub-rule (3) of Rule 4 was deleted by the amending Act of 1976. Hence ; under the present amended Code, the Court has ample power to exempt the plaintiff from the necessity of substituting the legal representatives of deceased defendant Nos. 1, 2 & 4. Such application has been filed by him at present. The opposite party has filed an objection. But the Court should allow that prayer. The cases of Velappan, in AIR 1969 Mad. 309 at page 315 and of Rajnath v. Siva Prasad, in AIR 1979 Pat. 239 at page 245 have been cited to show that the Court can dispense with the substitution of the deceased defendant without setting aside abatement at any stage of the suit before the delivery of the judgment.
(3.) The learned Advocate appearing on behalf of the opposite party has cited the Bench case of Nani Gopal v. Panchanan, in 59 CWN 304 at page 306 to show that under Order 22, Rule 4(4) of the Code, the Court has power to grant exemption only before and not after an abatement has taken place. The case of Annapurna v. Harasundari, in AIR 1975 Cal. 12 at page 14 has been cited to support this view.;