MOHINI KAPUR, J.—The Learned Civil Judge, Baran by his order, dated, 19th December, 1987 has allowed the application of the opposite party moved under Order 22 Rule 4(4) C P.C. It is this order, which has been challenged by the defendant petitioners.

2. The brief facts are that the opposite party filed a suit against several defendants and during the pendency of the suit, defendants No. 4 and 5 died and their legal representatives were not brought on record. On 4.8.1987 the remaining defendants moved before the court that two of the defendants had died and their legal representatives had not been brought on record. Therefore the suit should be dismissed as having abated. It was then that on 12.8.1987 the plaintiff non petitioner moved an application for claiming exemption from substituting the legal representatives of those defendants who had died as they had failed to file written statements and contest the suit.

3. The learned counsel for the petitioner has argued that abatement is a general law and a suit abates automatically without any order of the court and when such abatement taken place the party has to move the court for setting aside the abatement before any other order could be passed. In other words his contention is that the exemption from substituting legal representatives could have been given only after setting aside the abatement. According to him, the suit was dead and unless life was first infused in it there was no question of proceeding with it.

4. On the other hand the learned counsel for the non petitioner agreed that the abatement of suit is automatic but in the case there were other defend- * ants and in such cases where there are several defendants the court has to make an enquiry whether the suit can proceed against the surviving defendants even though it can abate as against the deceased defendants. In any case, exemption from the legal representative on record is said to be an exception to the general rule of abatement and for purpose of passing such an order it is not necessary that abatement should be first set aside because the exemption can be given at any time whenever the court thinks fit.

5. I have considered the contentions raised on behalf of both the sides. It cannot be denied that whenever a party wants to bring legal representatives on record, then it is necessary to move an application to that effect. If the partys application is belated then he has to give delay in moving the application. It is also a settled proposition of law that abatement of proceedings takes pace on its own force by passage of time and no specific order is envisaged (Madan Naik V. Mst. Hansubala Devi (1), and Union of India V. Ram Charan (2).

6. The question about giving exemption from bringing legal representatives on record arose before this court in M/s. Shiv Shankar Rice and General Mills V. Mangi Lal (3), wherein after taking into consideration the divergent views of the different High Courts this Court has taken the view that the power of the court to exempt the plaintiff from bringing legal representatives of the deceased defendant who had not filed the written statement, or having filed the same had not appeared to contest the suit at the hearing, is not fettered by the limitation of 90 days after which the suit as against the deceased must be deemed to have abated and the court can even thereafter grant such an exemption. This newly added sub rule (4), has been held to be an exception to the general rule that when within the time limited by the law no application for substitution is made the suit shall abate. The learned trial court has relied on this decision in accepting the application and granting exemption under O. 22 R. 4(4) CPC. I am in agreement with the view of this Court taken earlier and I also consider it proper to add that sub rule (4), it self the plaintiff from the necessity of substituting legal representative provides that the court whenever it thinks fit, may exempt, If it was the intention

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