The suit abates if the sole defendant dies before the institution of the suit, and legal representatives cannot be brought on record by way of amendment.

1. This revision application is filed against order dated 27-3-2004. by which trial Court rejected the application of the petitioner dated 14-12-2001 in which petitioner prayed that after the death of sole defendant the suit abates.

2. The facts of the case is like this, the respondent No.1 plaintiff filed a suit for declaration and permanent injunction against the defendant Gajendra Nath in the year 1998 i.e. on 5-10-1998. The sole defendant Gajendra Nath died on 25-8-1971 i.e. much prior to the filing of the civil suit. During the pendency of the civil suit respondent No.1 plaintiff filed an application for amendment under Order 6 of Rule 17 of Code of Civil Procedure and prayed that names of the legal representatives of Gajendra Nath be imp-leaded. The respondent No.1 came to know about death of Gajendranath on 20-1-2000. The said application was allowed by the trial Court on 7-2-2000. The petitioner filed an application on 14-12-2001 and raised an objection that the sole defendant died much prior to the filing of the suit and as such suit abates. The trial Court rejected the application only on the ground that by order dated 7-2-2000. the legal representative of the sole defendant was already brought on record. No revision or appeal was filed against the said order dated 7-2-2000 and as such application is not maintainable and rejected the application by the impugned order.

3. It is not disputed by the respondents No.1 and 2 that suit was filed on 5-12-1998 against the dead person. It is well settled law that Order 22 of Rule 4 of Code of Civil Procedure will not apply if death of the sole defendant will occur before the institution of the suit. The civil suit against the dead person cannot be deemed to be a proper suit. The Order 22 of Rule 4 of Code of Civil Procedure will applicable only to those cases where .one of the sole defendant died during the pendency of the proceeding. The learned counsel for petitioner relied a decision Smt. Agrawal Devi (widow of G.S. Agrawal) and others Vs. Arya Vidhya Sabha and another. It was held that if a defendant dies before the institution of the suit, the provisions of Order 22 Rule 4 will not apply. The legal representatives of sale defendant cannot be brought on record by way of amendment. The entire proceedings is null and void. The suit filed against dead person cannot be deemed to be proper suit.

4. In view of the above legal position, I am of the considered opinion that the trial Court acted illegally with material irregularity in rejecting the application of the petitioner. Therefore, the impugned order is liable to be set aside and accordingly set aside. The revision is allowed without any order as to costs.

Revision Allowed.