The court has the power to exempt a party from the necessity of substituting the legal representatives of deceased defendants after abatement has taken place, considering the circumstances of the case.

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 (1) Velappan, in AIR 1969 Mad. 309 at page 315 and of (2) 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 (3) 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 (4) Annapurna v. Harasundari, in AIR 1975 Cal. 12 at page 14 has been cited to support this view.

4. It is now necessary to state the facts. The disputed property belonged to one Bepin Behari Das, who died on the 25th March, 1956. On the 11th January, 1952, he executed a deed of gift in favour of his three sons, Purna (defendant No. 2), Jagadish (defendant No. 3) and Ajit (defendant No. 4). By that deed nothing was given to his widow, Indubala, defendant No. 1.

5. On the 2nd December, 1959, Jagadish died leaving his widow and children, who were not brought on the record. Then on the 18th September, 1963, Ajit expired leaving some heirs. On the 16th September, 1976, Indubala also breathed her last leaving Puma (defendant No. 2) alone as her son. After her death, no substitution was made. The question arises, what is now the legal position. No petition for substitution was made to implead the heirs of Jagadish, Ajit and Indubala. But it is common case that in 1961 Ajit and Jagadish surrendered their interest in the property in favour of their brother, Purna (defendant No. 2). It has already been indicated that Indubala became widow before the Hindu Succession Act came into operation. She had only a widow's estate in Bepin Bihari's property and later such limited interest ripened into an absolute interest, vide the principles of the case of (5) Mahabir v. Sashibhusan, in 85 CWN 357.

6. The learned Advocate appearing on behalf of the petitioner has pointed out that in Title Suit No. 79 of 1978 filed by the plaintiff-petitioner against Purna Chandra Das and others, an application under section 151 of the Code of Civil Procedure was filed by the defendants, Purna Chandra Das and others. In the paragraph 7 of that petition, it has been stated by them that Jagadish and Ajit surrendered their entire interest in