( 1 ) THIS second appeal is by original defendants 7 and 8 against the decree passed by the Civil Judge, Raichur, in RA. 125 of 1973, affirming the decree passed by the Munsiff, Raichur, in OS. 100 of 1967.

( 2 ) THE relevant facts for the disposal of this appeal may, briefly be stated as follows: After the suit was instituted by the plaintiffs against the defendants, the 5th defendant, who was set ex-parte,, died. About two years after his death, an application was made by the plaintiffs on the 4th of Sepr, 1973 under Or. 22, R. 4 (4) CPC praying that the plaintiffs be exempted from the necessity of substituing the legal representatives of the deceased 5th defendant, who has been declared ex-parte. The same day, the learned Munsifi made an order allowing the said application. The suit was ultimately decreed by the Court of first instance, which decree has teen affirmed on appeal by the learned Civil Judge. It is the said decree that is challenged by defendants 7- and 8 in this second appeal.

( 3 ) THE only contention urged by Shri Murlidhar Rao, learned Counsel appearing for the appellants, is that the Court of first instance committed an error of law in allowing the application of me plain lifts under or. 22, R. 4 (4) CPU exempting the plaintiffs from bringing the legal representatives of the deceased 5th defendebnt on record, it Was confided that as the application was admittedly made more than two years after the death of defendant 5, abatement had taken place, as a result of which the court of first instance could not have exervised the power of granting exemption under sub-rule (4) of Rule 4 of Or. 22 CPC. To apprecrate the contention of Sri Murlidhar Rao, it is necessary to extract the provisions of or. 22, R. 4, as amended by our High Court, as follows :"r. 4. Procedure in case of death of one of several defendants or of sole defendant- (i) 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 behalt, 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 to substitute the legal reprcsenatives of any such defendant who has been declared ex-parte or who has failed to file his written statement ox 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 had been pronounced before his death took place. "an application to bring the legal representatives of a deceased defendant has to be presented within 90 days from the date of death of the deceased defendant. If no such application is made, as provided under sub-rule (1) of the Rule 4 of Or. 22, the suit abates as against the deceased defendant. . Sub-rule (4) however empewers the Court to exempt the plaintiff from the necessity to substitute the legal representatives of any such defendant who has been declared ex-parte or who has failed to file his written statement or who having filed the written statement has failed to appear and contest at the hearing. The Court obviously has to exercise the discretion vested in sub-rule (4) after taking into consideration all the relevant facts and circumstances. In given circumstances, it is open to the Court to decline to accord exemption sought by the plaintiff under sub-rule (4) of Rule 4 of Order 22. If the Court, in exercise of its discretion,

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