Legal, representatives of deceased defendant can be substituted to defend the suit.

1. The civil revision petition has been filed by the petitioners against the order dated 6.1.1997 passed in I.A.No,3I6 of 1996 in O.S.No.80 of 1996 on the file of the District Munsif, Virudhuunagar, allowing the petition filed by the respondents 1 and 2 to bring the petitioners 3 to 7 herein as the legal representatives of the deceased, sole defendant.

2. The respondents 1 and 2 herein filed a suit in O.S.No.347 of 1994 on the file of the Subordinate Judge, Srivilliputtur, for specific performance of the agreement of sale dated 15.4.1992 executed by the wife of the first petitioner for consideration of Rs.30,000 in their favour. The said suit was contested by the first petitioners wife. In the meantime, the suit was transferred to the District Munsifs Court, Virudhunagar and renumbered as O.S.No.80 of 1996. On 17.1.1996 the first petitioners wife died. So, the respondents 1 and 2 filed an application in I.A.No.316 of 1996 in the above suit, to bring the petitioners and others as the legal representatives of the deceased defendant. This petition was allowed by the lower court by the impugned order dated 6.1.1996. This is challenged in the revision before this Court.

3. The counsel for the petitioners would mainly contend the though there is no dispute with regard to the relationship of parties hereto, still the respondents 1 and 2 cannot maintain such an application, in view of the nature of the subject-matter of the suit, involving the right to sue or to be sued and mere is no scope for applying for bringing the legal representatives on record. In short, the contention of the counsel is that they cannot be made as parties in a specific performance suit, because the agreement was entered into only between the first petitioners wife and the respondents 1 and 2.

4. The above contention may not be correct, in view of the following reasons.

Sec.37 of the Indian Contract Act, 1872 provides for such a contingency. Sec.37 reads thus:

Obligation of parties to contracts. The parties to a contract must either perform, or offer to perform their respective promises unless such performance is dispensed with or excused under the provisions of this Act, or of any other law. Promises bind the representative of the promissors in case of the death of such promissors before performance, unless a contrary intention appears from the contracts.”

It is not the case of the petitioners that there is a contrary intention expressed in the agreement, the subject-matter of the suit for specific performance. Besides this, O.22, Rule 4, C.P.C. also would say mat legal heirs could be brought as legal representatives of the defendant after the death of the defendant. O.22, Rule 4, C.P.C. processes thus:

“Rule 4 Procedure in case of death of one of several defendants or of sole defendant:(1) Where one of two ore 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 behalf, 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 of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the defendant notwithstanding the death of such defendant and shall have to the same force and effect as if it has been pronounced before death took place.

Since the legal heirs are representing the estate of