The court's discretion to exempt from substitution under Order 22, Rule 4 (4), C. P. C. can be exercised only before an abatement takes place and not after.

G. K. MISRA, J.

( 1 ) THE legal representatives of the original plaintiff are the appellants. The suit is for ejectment of the defendants from the suit site and for permanent injunction prohibiting the defendants from entering into the suit site and from proceeding with the construction of the houses. There was an allegation in the plaint that defendants 1 to 8 are the cousins of one Jagannath Behera and defendants 9 to 11 are their sworn friends, and all the defendants at the Instigation of Jagannath behera conspired and unlawfully encroached upon the suit site.

( 2 ) THE defence was that the defendants are in possession and enjoyment of the suit land from the time of their ancestors and are using it for storing manure to the knowledge of the plaintiff. The suit land is a poromboke land and the defendants are not aware how the plaintiff got the suit land recorded in his name. The plaintiffs title and possession were denied.

( 3 ) THE Courts below negatived the plaintiff's ease holding that the plaintiff had no title and possession within 12 years of the suit.

( 4 ) DURING the pendency of the second appeal, respondent-9 Dhanu Sahu (defendant 9) died on 15th December 1962. Application for se'ting aside abatement and for substitution were filed on 8th July 1963. The substitution was not made within 90 days. In the application it is mentioned that out of the two appellants, one was bed-ridden for 3 months from the month of March, and nothing was mentioned as to why the other appellant did not take any step for substitution within 90 days. Parties were heard at length on the question of setting aside abatement. The appellants failed to prove that they were prevented by any sufficient cause from continuing the appeal. In the circumstances, the question of setting aside abatement does not arise. The second appeal accordingly abates as against deceased respondent-9.

( 5 ) MR. Rath, however, relies upon Order 22, Rule 4 (3) and (4), C. P. C. , as introduced by the Orissa High Court. Sub-rules (3) and (4) run as follows:

" (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 except as provided in

Sub-rule (4) below. (4) Whenever the Court thinks fit, it may exempt the plaintiff from the necessity of substituting the legal representative of a defendant who has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before the death of such defendant. "

Mr. Rath emphasises upon the words "whenever the Court thinks fit", and con ends that the court can exercise its discretion for holding that substitution is not necessary at any time before the case is disposed of even though no application is made for substitution and abatement lakes place automatically after the expiry of 90 days from the date of death. Under Order 22, Rule 11, in the application of order 22 to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal. The Orissa amendment introducing Sub-rule (4), adopts the Calcutta amendment excluding the words "any such defendant who has failed to file a written statement". By this exclusion, Sub-rule (4) may not at all apply to any abatement arising in the suit itself. Sub-Rule (4) has application if the defendant has failed to appear and contest the suit at the hearing. This sub-rule may therefore apply to a suit only after the deceased defendant starts contesting at the hearing and then dies in course of the hearing before the suit concludes. It is, however, not necessary to express a final opinion on this question as the question of abatement did not arise during the pendency of the suit.

( 6 ) THOUGH under Order 22, Rule 11, a suit means an appeal so far as may be, the word '