IMPORTANT POINTS
Failure to obtain exemption from substituting the defendant on his death before pronouncement of judgment will abate the suit and the decree if any passed, will be nullity.
Issue not raised before courts below cannot be raised before Supreme Court.

Judgment :-

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 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 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 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 and 2 in th