Though this appeal is listed in the admission category, in view of substantial question of law framed, with the consent of learned advocates on both sides, is taken up for final hearing.

2. The husband and father of the appellants – Angadi Srinivasa, was the sole defendant in O.S. No. 33/2007, on the file of the Principal Civil Judge (Jr.Dn.) at Maddur. The suit was filed by the respondent herein for passing a decree of ejectment against Sri Angadi Srinivasa and for delivery of vacant possession of the suit schedule premises. Despite service of summons, the defendant did not appear and he was placed exparte. The plaintiff got examined herself as PW.1 and marked Exs.P1 and P2. After hearing the arguments and appreciation of the record, the suit was dismissed by a judgment and decree dated 09.07.2008.

3. Assailing the said decree, the plaintiff filed, on 08.09.2008, R.A. No. 51/2008, in the Court of Civil Judge (Sr.Dn.), Maddur. The defendant/respondent died on 25.12.2010. Death of the respondent was not informed and the legal representatives of the deceased was not brought on record by the appellant. Upon hearing of the arguments, the appeal was allowed and the judgment and decree passed by the Trial Court was set aside and the suit was decreed with costs. The defendant was directed to vacate and hand over vacant possession of the suit schedule property to the plaintiff within a period of three months and pay damages of Rs.1,000/- per year from 2002, till delivery of vacant possession. Assailing the said decree, the wife and children of deceased defendant – Angadi Srinivasa, filed this appeal.

4. The substantial question of law raised for consideration is, “whether the decree passed by the Lower Appellate Court, in ignorance of the death of the respondent before it is sustainable in law?”

5. Smt. Archana Murthy, learned advocate, contended that as the sole defendant, who was the sole respondent in the appeal died during the pendency of the appeal before the Lower Appellate Court and his L.Rs. having not been brought on record, the Lower Appellate Court has committed illegality in allowing the appeal and setting aside the decree of dismissal of the suit passed by the Trial Court. She submitted that the decree passed by the Lower Appellate Court against a dead person being a nullity is liable to be declared as void.

6. Sri D.S. Hosmath, learned advocate, on the other hand contended that the defendant having failed to appear and file written statement to the suit and he having been placed exparte, that in view of the provision made as per Order 22 Rule 4(4) CPC, the impugned decree is sustainable.

7. Order 22 Rule 1 CPC deals with question of abatement on the death of plaintiff or of the defendant in a civil suit. Order 22 Rule 2 relates to procedure where one of the several plaintiffs or the defendants dies and the right to sue survives. Order 22 Rule 3 deals with procedure in case of death of one of the several plaintiffs or of the sole plaintiff. Order 22 Rule 4 deals with procedure in case of death of one of the several defendants or the sole defendant. L.Rs. of the deceased can be brought on record within 90 days from the date of death as per Article 120 of schedule to the Limitation Act, 1963. The abatement takes place automatically by operation of law, without an order of Court, as is clear from sub-Rule (3) of Rule 4 CPC. If 60 days time expires after the expiry of 90 days, an application for setting aside abatement, under Article 121 of schedule to the Limitation Act, 1963 has to be made.

8. Andhra Pradesh High Court, in the case of MOHD. SAFDAR SHAREEF (DIED) PER L.RS. AND OTHERS Vs. MOHAMMED ALI (DIED) PER L.R., 1993(1) ALT 522, explaining the meaning of the word “abatement”, has held as under:

“10. The meaning of the word ‘abate’ as per Law Lexicon of Venkataramaiya’s, is “to throw down, to beat down, destroy, quash; to do away with; to put an end to, to nullity, to make void”. In view of this meaning, the appeal whi