REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO. 1259 OF 2009        (Arising out of SLP© NO. 10347 OF 2007)

T. Gnanavel                                ..Appellant

Versus

T.S. Kanagaraj and Anr.                    ...Respondents

J U D G M E N T

    TARUN CHATTERJEE,J.

1. Leave granted.

2. This appeal is directed against the final judgment and

order dated 12th of  April,  2007 of the High Court of

Madras at Chennai in Civil Revision Petition (PD) Nos.

1453 & 1454 of 2005 and in Civil  Revision Petition

(PD)  No.  62 of 2006,  whereby  the High Court,  by a

common judgment, had dismissed the Civil  Revision

Petition (PD) Nos. 1453 & 1454 of 2005 filed by the

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appellant  herein  and  allowed  the  Civil  Revision

Petition (PD) No. 62 of 2006 filed by the respondents.

3.    The  question that  needs  to be  decided  in this  appeal

relates to the interpretation of Order XXII Rule 4[4] of the Code

of Civil Procedure  

[for short ‘the CPC’].   

4.    The  interpretation  given  by  the  High  Court  in  the

impugned judgment is that once the sole defendant dies and the

civil  court  passes  a  decree  in  ignorance  of  the  same  and

thereafter even there being any exemption obtained under Order

XXII Rule 4 Sub-Rule 4 of the CPC to bring the heirs and legal

representatives  of  the  sole  defendant  on  record,  the  ex  parte

decree  passed  in  favour  of  the  plaintiff/appellant  becomes  a

nullity.   

5.    At this stage, we may now narrate the facts of this case.

The appellant was a plaintiff in a suit for specific performance of

contract for sale which was filed in the Court of City Civil Judge,

Chennai against the sole defendant, since deceased (hereinafter

referred to as ‘the defendant’). The father of the appellant had

entered into an agreement with the defendant to purchase the

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property,  namely,  Thiruvalluvar  Street,  Rajaram Metha Nagar,

Chennai-29 (hereinafter  referred to as the ‘suit  property’)  at  a

sale  consideration  of  Rs.60,000/-  and  paid  the  entire  sale

consideration.  In  view  of  the  refusal  to  execute  the  deed  in

favour  of  the  father  of  the  appellant,  the  aforesaid  suit  for

specific  performance  of  the  contract  for  sale  was  filed  by  the

appellant  on  the  death  of  his  father.   In  order  to  evict  the

appellant  from the  suit  property,  the  defendant  also  filed  an

eviction petition against the appellant on the ground of willful

default  treating  him  as  a  tenant.   In  the  suit  for  specific

performance,  the  defendant  had  filed  a  written  statement

denying the material  allegations made in the plaint but finally

had failed to appear and contest the suit. Be it mentioned herein

that during the pendency of the suit for specific performance of

the  contract  for  sale,  the  defendant  died.  The  death  of  the

defendant, however, was not brought on record by the plaintiff-

appellant. Thereafter, without the knowledge of such death, the

trial Court passed an ex parte decree for specific performance of

the  contract.   The  respondents,  who  are  the  heirs  and  legal

representatives  of  the  defendant,  after  pronouncement  of  the

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judgment  in the aforesaid  suit  for  specific  performance  of  the

contract, filed an application for causing abatement of the same

on 23rd of March, 2005, from which the plaintiff/appellant came

to know that the defendant had died.  The appellant thereafter

filed an application in the suit before the trial court praying for

exemption from bringing the heirs and legal representatives of

the defendant and the same was allowed by the trial court.   

6.  It  may  be  mentioned  herein  that  the  suit  for  specific

performance was filed after the aforesaid civil revision case for

eviction of the appellant was dismissed by the High Court.   

7.   The  execution  petition  filed  by  the  defendant  was

thereafter disposed of ex-parte. Thereafter, the appellant filed an

application praying for setting aside the ex parte order and for

stay of execution of warrant.  By an order dated 20th of April,

2000,  the  Executing  Court  rejected  the  aforesaid  application

filed by the appellant for default.  As noted herein earlier, during

the pendency of the suit for specific performance and also the

execution  proceeding,  the  defendant  died  on  10th of  August,

2001.   In  the  execution  proceeding,  the  heirs  and  legal

representatives of the defendant, who are now respondent Nos. 1

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and 2 in this appeal, filed an interlocutory application praying

for impleading them in the suit for specific performance for sale.

As  noted  herein  earlier,  by  an  order  dated  12th of  February,

2004,  the  executing  court  had  allowed  their  application  for

impleadment on the death of the defendant namely, respondent

Nos.  1  and  2  in  the  execution  proceeding.   As  noted  herein

earlier, the trial court allowed the said application filed by the

appellant under Order XXII Rule 4[4] of the CPC. In the month of

June 2005, the appellant filed an execution petition to execute

the decree  for  specific  performance  of  the contract  for sale  in

which objection under Section 47 of the CPC contending that the

decree  was  inexecutable,  was  raised.   However,  the  objection

raised under Section 47 of the CPC on the question of decree

being inexecutable was dismissed by the executing court by an

order dated  14th of  September,  2005.   Being aggrieved by the

dismissal  order  passed by  the  executing  court  in the  eviction

proceedings holding that it was incorrect to say that the order of

eviction passed by the Rent Controller was inexecutable in view

of the decree passed by the civil  court  in the suit for specific

performance  of  the  contract  for  sale,  the  appellant  filed  civil

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revision  petitions,  namely,  CRP  Nos.1453  and  1454  of  2005

before  the  High Court.   By an order  dated  15th of  November,

2005, the trial court, in the suit for specific performance of the

contract,  held  that  the  decree  passed  in  the  suit  for  specific

performance of the contract for sale was not a nullity and being

aggrieved by the said order of dismissal,  the respondents also

filed a revision petition being CRP No.62 of 2006.  All the three

revision  petitions  filed  by  the  appellant  and  the  respondents

were  taken  up  analogously  by  the  High  Court  and  the  High

Court by the impugned order held that once the defendant had

died and the civil court passed a decree in ignorance of the same

and thereafter without there being any exemption obtained by

the plaintiff/appellant under Order XXII  Rule 4[4] to bring the

heirs and legal representatives of the defendant on record before

the judgment was pronounced, the ex parte decree so passed in

favour of the plaintiff/appellant became a nullity.  In view of the

aforesaid order, the High Court dismissed the civil revision cases

filed by the appellant and allowed the civil revision case filed by

the  respondents.   It  is  against  this  common judgment  of  the

High Court  that a Special  Leave  Petition was filed before  this

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Court, which on grant on leave was heard by us in the presence

of the learned counsel appearing on behalf of the parties.

8.    We have heard the learned counsel appearing on behalf

of the parties and perused the materials on record. The issue,

which is to be decided in this appeal, whether the decree passed

by the civil  court  in ignorance of  the death of the defendant,

without  granting  any  exemption  to  the  appellant  before  the

judgment was pronounced, as required under Order XXII Rule 4

(4) of the CPC, is sustainable in law.

9.   Order XXII Rule 1 of the CPC deals with the question of

abatement on the death of the plaintiff or of the defendant in a

civil suit.  Order XXII Rule 2 relates to procedure where one of

several plaintiffs  or defendants dies and right to sue survives.

Order XXII  Rule 3 of the CPC deals with procedure in case of

death of one of several plaintiffs or of sole plaintiff.  Order XXII

Rule  4  of  the  CPC,  however,  deals  with procedure  in  case  of

death  of  one  of  several  defendants  or  of  sole  defendant.   For

understanding the issue raised before us in this appeal, it would

be convenient at this stage to reproduce Order XXII Rule 4 of the

CPC, which runs as under :-    

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“(1) Where one of two or more defendants dies and the right to sue  does  not  survive  against  the  surviving  defendant  or defendants  alone,  or  a  sole  defendant  or  sole  surviving defendant dies and the right to sue survives, the Court, on an application  made  in  that  behalf,  shall  cause  the  legal representative of the deceased defendant to be made a party and shall proceed with the suit.   (2) Any  person  so  made  a  party  may  make  any  defence appropriate  to  his  character  as  legal  representative  of  the deceased defendant.    

(3) Where  within  the  time  limited  by  law  no  application  is made  under  sub-rule  (1),  the  suit  shall  abate  as  against  the deceased defendant.   

(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 filed 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.”

10.  A bare perusal of the provisions under Order XXII Rule 4(3)

of the CPC would clearly show that where within the time limited

by law, no application is made under sub-rule 1, the suit shall

abate as against the deceased defendant.  It is not in dispute in

the present case that the plaintiff appellant admittedly did not

file  any  application  for  substitution  on  the  death  of  the

defendant.  Therefore, on the death of the defendant, the suit

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automatically abates after the time prescribed to bring on record

the heirs and legal representatives of the defendant expires.

11.   However, this is subject to Order XXII Rule 4(4) of the CPC

which runs as under :-      

“Order  22  Rule  4  (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 the death took place.”  

12.It was argued by Mr. Ranjit Kumar, learned senior counsel

appearing on behalf of the appellant, that in view of Order XXII

Rule  4(4)  of  the CPC and in view of  the  admitted  fact  that

exemption  was  obtained  by  the  appellant  from bringing  on

record the heirs and legal representatives of the defendant in

the trial court and, therefore, question of bringing on record

the heirs and legal representatives of the defendant would not

arise as Order XXII  Rule 4(4) of the CPC clearly says that if

such exemption is  granted by  the  Court,  the  effect  of  such

death would be taken as if the decree was pronounced before

the said death had taken place.

� �   As noted herein earlier, a plain reading of Order XXII Rule 4

(4) of the CPC would clearly show that the Court is empowered

to  exempt  a  plaintiff  from the  necessity  of  substituting  the

heirs and legal representatives of any such defendant who has

failed to file a written statement or who, having filed it, had

failed to appear and contest the suit at the time of hearing of

the same, but such an exemption can only be granted  before

the judgment is pronounced and in that case only, it can be

taken against the said defendant notwithstanding the death of

such defendant and such a decree shall have the same force

and effect as it was pronounced before the death had taken

place. Mr. Ranjit Kumar, learned senior counsel appearing on

behalf of the appellant relying on a decision of this Court in

the case  of  Zahirul  Islam  vs. Mohd.  Usman and Others,

[2003  (1)  SCC 476],  argued  that  since  an  application  from

exempting the plaintiff/appellant from bringing on record the

heirs and legal representatives of the defendant was filed in

the present case but in view of the fact that exemption under

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Order XXII Rule 4 (4) was not allowed in the above mentioned

decision  and  in  the  aforesaid  decision,  no  such  permission

was sought or granted by the Court, the High Court was in

error in holding that the decree passed in the suit for specific

performance of the contract by the trial court was a nullity. We

are unable to accede to this submission of Mr. Ranjit Kumar,

the  learned  senior  counsel  appearing  on  behalf  of  the

appellant  for  the  simple  reasons  viz.  (1)  on  the  abatement

caused  on  the  death  of  defendant,  the  suit  automatically

abated in view of the provisions under Order XXII Rule 4(3) of

the  CPC  and  (2)  from the  decision  in  the  case  of  Zahirul

Islam  vs. Mohd.  Usman and Others,  (supra),  it  would  be

evident that no exemption was sought or granted under Order

XXII Rule 4(4) of the CPC in the aforesaid decision. In any view

of the matter, Order XXII Rule 4(4) of the CPC clearly says that

such  exemption  to  bring  on  record  the  heirs  and  legal

representatives of the deceased could be taken or granted by

the  court  only  before  the  judgment  is  pronounced  and  not

after it.  

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14.In view of our discussions made hereinabove and after going

through the provisions under Order XXII Rule 4(4) of the CPC,

as discussed herein earlier, and in view of the principles laid

down by the aforesaid decision,  it  is,  therefore,  clear that if

exemption, which is provided under Order XXII  Rule 4(4) of

the CPC is obtained from the Court before the delivery of the

judgment,  in  that  case,  it  would  be  open  to  the  Court  to

exempt the plaintiff from bringing on record the heirs and legal

representatives  of  the  defendant  even  if,  the  defendant  had

died during the pendency of the suit as if the judgment was

pronounced  by  treating  that  the  defendant  was  alive

notwithstanding the death of such defendant and shall have

the same force and effect as if it was pronounced before the

death  had  taken  place.  That  being  the  position,  we  are,

therefore,  of  the  view  that  since  in  this  case,  admittedly,

exemption was obtained after the judgment was pronounced,

the provision of Order XXII Rule 4(4) of the CPC would not be

attracted.   

� �   In  our  view,  the  aforesaid  decision  in  the  case  of  Zahirul

Islam (Supra)  can also be distinguished on facts.  As noted

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herein  earlier,  in  that  decision,  the  plaintiff  did  not  seek

permission of the Court under Order XXII Rule 4(4) of the CPC

and in that view of the matter, this Court held that the legal

representatives of the deceased defendant was entitled to be

brought on record in the suit.  Admittedly, in our case, after

the judgment was pronounced, the permission was sought to

exempt  the  plaintiff  from  the  necessity  of  substituting  the

heirs and legal representatives of the defendant and not before

it.  That being the position, we do not find any ground to rely

on this judgment of this Court as sought by Mr. Ranjit Kumar,

learned senior counsel appearing for the appellant.   

� �   This view has also been expressed by Madras High Court in a

decision reported in Elisa and others vs. A. Doss, [AIR 1992

Mad. 159],  in which the Madras High Court in paragraph 3

had observed as follows :-

“It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no application is made within the  said  period,  the  suit  shall  abate  as  against  the deceased defendant.  That is the effect of  sub rule 3. Sub-rule  (4)  provides  an  exception  to  sub-rule  (3). Under Sub-Rule (4), it is open to the court to pass an order  exempting  the  plaintiff  from  the  necessity  of bringing  on  record  the  legal  representatives  of  any

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defendant, who had failed to file a written statement or having filed the written statement, failed to appear and contest the suit at the hearing. But, the language of sub rule (4) is clear enough to show that the court must pass an order exempting the plaintiff  from the necessity of substituting the legal representatives. Of course, it is not necessary for  the plaintiff  to file  a written application seeking such exemption,  as the rule  does not require one. Under the said rule, the court must apply its mind and think it fit,  in the facts and circumstances of  the case,  to  grant  the  exemption.  For  granting  such exemption,  the  defendant  who  died  should  have remained  ex  parte,  either  without  filing  the  written statement or after filing the written statement. It is clear from the language  of  the  said  rule  that the  order  of exemption  shall  be  passed  before  a judgment  in  the case is pronounced. The relevant portion of the said rule reads  that  the  court  ‘may  exempt  the  plaintiff’  and ‘judgment may, in such case pronounced.’ That part of the sub rule says that the order of  exemption should precede the judgment to be pronounced in the suit…….” (emphasis supplied)

17. For the reasons aforesaid, we are of the opinion that the

High Court had rightly interpreted the provision of Order XXII

Rule  4  (4)  of  the  CPC  and  accordingly  held  that  the  decree

passed by the trial court on 20th of December, 2002, in O.S. No.

3946 of 1999 was a nullity in the eye of law as the defendant

had  died  during  the  pendency  of  the  suit  for  specific

performance  of  the  contract  for  sale  and  no  exemption  was

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sought  at  the  instance  of  the  plaintiff/appellant  to  bring  on

record the heirs and legal representatives of the defendant before

the judgment was pronounced.   

18. There is another submission that needs to be considered at

this  stage.   The  learned  counsel  appearing  on  behalf  of  the

appellant had contended that the respondents were duty bound

under the provisions of Order XXII  Rule 10 (A)  of the CPC to

intimate  the  knowledge  of  the  death  of  the  defendant  to  the

court as well as to the appellant, which they had failed to do and

therefore, the trial court was correct in law to grant exemption to

the  appellant  from  bringing  on  record  the  heirs  and  legal

representatives of the defendant after the decree was passed. As

had already been mentioned above, the conditions laid down in

the  above  mentioned  rule  are  clear  to  the  effect  that  the

exemption to be granted by the court has to be obtained before

the judgment is delivered and not after it. Therefore, we are not

in a position to accept the contention of the appellant to this

effect. Further, the respondents had disputed the fact that they

had not intimated the information relating to the death of the

defendant to the appellant.  This Court is not entitled to go into

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the question of determining the veracity of the statements made

by either party. Before parting with this aspect of the matter, it

is also an admitted position that the appellant had not raised

the question regarding the applicability of the provision under

Order XXII  Rule 10(A)  of the CPC before  the High Court and,

therefore, we also cannot permit the appellant from raising such

question for the first time in this Court.   

19. In  view  of  the  discussions  made  herein  above  and  the

decisions considered by us in this appeal, it is amply clear that

the High Court had rightly held that the order of the trial court

was a nullity and thus the same was liable to be set aside. We

therefore  find  no  infirmity  in  the  impugned  judgment.  The

appeal  is  accordingly  dismissed.  There  will  be  no order  as to

costs.

  …………………………J   [TARUN CHATTERJEE]

 NEW DELHI            ……………………………J   FEBRUARY 25, 2009                           [HARJIT SINGH BEDI]

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