Sub-rule (3) to R.4 of O.22 of the Code substituted by this Court on March 25, 1975, is not inconsistent with the provisions of the Code as amended by the Amendment Act and consequently does not stand repealed.

RAJENDRA NATH MITTAL, J.

1. The short question for determination in the present reference is whether sub-rule (3) of R.4 of Order 22 of the Code of Civil Procedure (hereinafter referred to as the Code) substituted by this Court on March 25, 1975 is inconsistent with the provisions of the Code as amended by the Code of Civil Procedure (Amendment) Act, 1976 (hereinafter referred to as the Amendment Act) and consequently stands repealed.

2. Briefly the facts of the case are that the plaintiff instituted a suit for possession which was decreed by the trial Court. The defendant-respondents went up in appeal before the first appellate Court. The appeal was accepted by it and the suit was dismissed. The plaintiff against the judgement and decree of the first appellate Court came to this Court in second appeal. During the pendency of the appeal, defendant-respondents Nos. 1 and 3 died on Feb. 13, 1977, but their legal representatives were not brought on the record till March, 1978. On March 7, 1978, an application (C.M. No. 458-C of 1978) under O.22 R.4(3) of the Code was filed by respondent No. 2 praying that on account of death of respondents Nos. 1 and 3, the appeal abated and it might be dismissed as such. It came up before Bains, J., who vide order dated March 14, 1978, referred the matter for decision to a Full Bench.

3. To appreciate the question, reference may be made to the relevant provisions of the Code and the amendments made by this Court. Order 22 R.4 relates to the procedure in case of death of one of the several defendants or of the sale defendant. The said rule prior to the enforcement of the Amendment Act was as follows :-

"4 (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sale 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."

Section 122 empowers the High Court to make rules. This Section reads as under :

"122. Power of certain High Courts to make rules : High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the first Schedule."

In pursuance of the powers conferred under S.122, this Court substituted the following sub-rule in place of sub-rule (3) to R.4 of Order 22 :

"Where within the time limited by law no application is made under sub-rule (1) the suit shall not abate as against the deceased-defendant and judgement be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

In 1976, the Code was amended by the Amendment Act. The Amendment Act was, however, enforced with effect from Feb. 1, 1977. Sub-rules (1), (2) and (3) of R.4 of O.22 of the Code were retained and sub-rules (4) and (5) were added after sub-rule (3) to the said rule. The said sub-rules are reproduced below :

"(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 judgement may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took