Holding

A decree pronounced after the death of a sole defendant is a nullity unless exemption under Order XXII Rule 4(4) of the CPC is obtained before the judgment is pronounced.

Issues considered

Whether a decree passed by a civil court in ignorance of the death of a sole defendant is a nullity when no exemption under Order XXII Rule 4(4) was obtained before judgment.
Whether exemption under Order XXII Rule 4(4) can be granted after the judgment and affect the decree’s validity.
Whether the applicability of Order XXII Rule 10(A) can be raised for the first time before the Supreme Court.

Legislation cited

Code of Civil Procedure, 1908s. Order XXII Rule 10(A), s. Order XXII Rule 4(4), s. Section 47

Subjects

decree nullitydeath of defendantOrder XXII Rule 4exemptionspecific performancecivil procedureabeyancejudgment after death

Judgment

[2009) 3 S.C.R. 451

T. GNANAVEL A
v.
T.S. KANAGARAJ AND ANR.
(Civil Appeal No. 1259 of 2009)
FEBRUARY 25, 2009
B
[TARUN CHATIERJEE AND HARJIT SINGH BEDI, JJ.]

Code of Civil Procedure, 1908:

Order XX// Rule 4 Sub Rule 4 - Civil Court passing a c
decree in ignorance of the death of defendant - Exemption
obtained thereafter for bringing the legal representatives of the
sole defendant on record - Whether the decree passed
becomes a nullity - Held: Yes, as rightly held by the High
"' Court the order of the High Court was a nullity.
' D
Order XX// Rule 10(A) - Applicability of - Question not
raised before High Court - Cannot be permitted to raise the
question for the first time before the Supreme Court.

In the appeal, the appellant has challenged the E
interpretation given by the High Court that once the sole
defendant dies and the civil court passes a decree in

•
" ignorance of the same and thereafter even there being
any exemption obtained under Order XXll Rule 4 Sub-
Rule 4 of the CPC to bring the heirs and legal F
representatives of the sole defendant on record, the ex
parte decree passed in favour of the plaintiff/appellant
becomes a nullity.

Dismissing the appeal, the Court
G
-.-
HELD:1.1. A plain reading of Order XXll Rule 4 (4) of
the CPC would clearly show that the Court is empowered
to exempt a plaintiff from the necessity of substituting the
heirs and legal representatives of any such defendant
451 H

-!
452 SUPREME COURT REPORTS [2009] 3 S.C.R.

."
A who has failed to file a written statement or who, having
filed it, had failed to appear and contest the suit at the
time of hearing of the same, but such an exemption can
only be granted before the judgment is pronounced and
in that case only, it can be taken against the said
defendant notwithstanding the death of such defendant
B
and such a decree shall have the same force and effect
as it was pronounced before the death had taken place.
[Para 13] [459-D-F]

1.2. If exemption, which is provided under Order XXll
c Rule 4(4) of the CPC is obtained from the Court before
the delivery of the judgment, in that case, it would be
open to the Court to exempt the plaintiff from bringing
on record the heirs and legal representatives of the
defendant even if, the defendant had died during the
)
D pendency of the suit as if the judgment was pronounced
by treating that the defendant was alive notwithstanding
the death of such defendant and shall have the same
force and effect as if it was pronounced before the death
had taken place. That being the position, and that since
E in this case, admittedly, exemption was obtained after the
judgment was pronounced, the provision of Order XXll
Rule 4(4) of the CPC would not be attracted. [Para 14]
[460-E-G] •
•
Zahirul Islam vs. Mohd. Usman and Others, 2003 (1)
F sec 476, distinguished.
Elisa and others vs. A. Doss, AIR 1992 Mad. 159,
referred to.

G 2. The High Court had rightly interpreted the
provision of Order XXll Rule 4 (4) of the CPC and --
accordingly held that the decree passed by the trial court
on 20th of December, 2002, in 0.5. No.3946 of 1999 was
a nullity in the eye of law as the defendant had died
,.
during the pendency of the suit for specific performance
H

l
T. GNANAVEL v. T.S. KANAGARAJ AND ANR. 453

of the contract for sale and no exemption was sought at A
the instance of the plaintiff/appellant to bring on record
the heirs and legal representatives of the defendant
before the judgment was pronounced. [Para 17] [462-C-
E]
B
3. The conditions laid down in Order XII Rule 10{A)
of the CPC are clear to the effect that the exemption to
J be granted by the court has to be obtained before the
judgment is delivered and not after it. Further, the
respondents had disputed the fact that they had not C
intimated the information relating to the death of the
defendant to the appellant. This Court is not entitled to
go into the question of determining the veracity of the
statements made by either party. It is also an admitted
position that the appellant had not raised the question
_. regarding the applicability of the provision under Order D
XXll Rule 10{A) of the CPC before the High Court and,
therefore, he cannot be permitted to raise such question
for the first time in this Court. [Para 18) [462-H; 463-A-B]
Case Law Reference: E
2003 (1) sec 476 distinguished Para 13
AIR 1992 Mad. 159 referred to Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal No. F
1259 of 2009.

From the Judgment & Order dated 12.4.07 of the High-
Court of Madras in Civil Revision Petition (PD) No's 1453 &
1454 of 2005 and in Civil Revision Petition (PD) No. 62/2006.
G
Ranjit Kumar, P.R. Kovilan Poongkuntran, Sri Dhar Reddy
and Naresh Kumar for the Appellants.
Siddhartha Dave and Vibha Datta Makhija for the
Respondent.
H
454 SUPREME COURT REPORTS [2009] 3 S.C.R.

A The Judgment of the Court was delivered by
TAR UN CHATTERJEE, J. 1. Leave granted.
2.. This appeal is directed against the final judgment and
order dated 12th of April, 2007 of the High Court of Madras
B at Chennai in Civil Revision Petition (PD) Nos. 1453 & 1454
of 2005 and in Civil Revision Petition (PD) No. 62 of 2006,
whereby the High Court, by a common judgment, had dismissed
the Civil Revision Petition (PD) Nos. 1453 & 1454 of 2005
filed by the appellant herein and allowed the Civil Revision
c Petition (PD) No. 62 of 2006 filed by the respondents.
3. The question that needs to be decided in this appeal
relates to the interpretation of Order XXll Rule 4[4] of the Code
of Civil Procedure
o [for short 'the CPC'].
4. The interpretation given by the High Court in the
· impugned judgment is that once the sole defendant dies and
the civil court passes a decree in ignorance of the same and
thereafter even there being any exemption obtained under
E Order XXll Rule 4 Sub-Rule 4 of the CPC to bring the heirs
and legal representatives of the sole defendant on record, the
ex parte decree passed in favour of the plaintiff/appellant
becomes a nullity. •
F 5. At this stage, we may now narrate the facts of this
case.
The appellant was a plaintiff in a suit for specific
performance of contract for sale which was filed in the Court
of City Civil Judge, Chennai against the sole defendant, since
G deceased (hereinafter referred to as 'the defendant'). The father
of the appellant had entered into an agreement with the
defendant to purchase the property, namely, Thiruvalluvar
Street, Rajaram Metha Nagar, Chennai-29 (hereinafter referred
to as the 'suit property') at a sale consideration of Rs.60,000/
H - and paid the entire sale consideration. In view of the refusal
T. GNANAVEL v. T.S. KANAGARAJ AND ANR. 455
[TARUN CHATIERJEE, J.]
... to execute the deed in favour of the father of the appellant, the A
aforesaid suit for specific performance of the contract for sale
was filed by the appellant on the death of his father. In order
to evict the appellant from the suit property, the defendant also
filed an eviction petition against the appellant on the ground of
willful default treating him as a tenant. In the suit for specific B
performance, the defendant had filed a written statement
denying the material allegations made in the plaint but finally
../ had failed to appear and contest the suit. Be it mentioned
herein that during the pendency of the suit for specific
performance of the contract for sale, the defendant died. The c
death of the defendant, however, was not brought on record
by the plaintiff-appellant. Thereafter, without the knowledge of
such death, the trial Court passed an ex parte decree for
specific performance of the contract. The respondents, who
are the heirs and legal representatives of the defendant, after D
• pronouncement of the judgment in the aforesaid suit for specific
performance of the contract, filed an application for causing
abatement of the same on 23rd of March, 2005, from which
the plaintiff/appellant came to know that the defendant had
died. The appellant thereafter filed an application in the suit
E
before the trial court praying for exemption from bringing the
heirs and legal representatives of the defendant and the same
was allowed by the trial court .
.. 6. It may be mentioned herein that the suit for specific
performance was filed after the aforesaid civil revision case F
for eviction of the appellant was dismissed by the High Court.

7. The execution petition filed by the defendant was
thereafter disposed of ex-parte. Thereafter, the appellant filed
an application praying for setting aside the ex parte order and G
for stay of execution of warrant. By an order dated 20th of
April, 2000, the Executing Court rejected the aforesaid
application filed by the appellant for default. As noted herein
earlier, during the pendency of the suit for specific performance
and also the execution proceeding, the defendant died on
H
'

456 SUPREME COURT REPORTS [2009] 3 S.C.R.

A 10th of August, 2001. In the execution proceeding, the heirs ••
and legal representatives of the defendant, who are now
respondent Nos. 1 and 2 in this appeal, filed an interlocutory
application praying for impleading them in the suit for specific
performance for sale. As noted herein earlier, by an order
B dated 12th of February, 2004, the executing court had allowed
their application for impleadment on the death of the defendant
namely, respondent Nos. 1 and 2 in the execution proceeding.
As noted herein earlier, the trial court allowed the said '
application filed by the appellant under Order XXll Rule 4[4] of
c the CPC. In the month of June 2005, the appellant filed an
execution petition to execute the decree for specific
performance of the contract for sale in which objection under
Section 47 of the CPC contending that the decree was
inexecutable, was raised. However, the objection raised under
Section 47 of the CPC on the question of decree being
D >
inexecutable was dismissed by the executing court by an order
dated 14th of September, 2005. Being aggrieved by the
dismissal order passed by the executing court in the eviction
proceedings holding that it was incorrect to say that the order
of eviction passed by the Rent Controller was inexecutable in
E view of the decree passed by the civil court in the suit for
specific performance of the contract for sale, the appellant
filed civil revision petitions, namely, CRP Nos.1453 and 1454
of 2005 before the High Court. By an order dated 15th of ~

November, 2005, the trial court, in the suit for specific
F performance of the contract, held that the decree passed in
the suit for specific performance of the contract for sale was
not a nullity and being aggrieved by the said order of dismissal,
the respondents also filed a revision petition being CRP No.62
of 2006. All the three revision petitions filed by the appellant
G and the respondents were taken up analogously by the High
Court and the High Court by the impugned order held that
once the defendant had died and the civil court passed a
decree in ignorance of the same and thereafter without there
being any exemption obtained by the plaintiff/appellant under
H Order XXll Rule 4[4) to bring the heirs and legal representatives
T. GNANAVEL v. T.S. KANAGARAJ AND ANR. 457
[TARUN CHATIERJEE, J.]
-·/
of the defendant on record before the judgment was A
pronounced, the ex parte decree so passed in favour of the
plaintiff/appellant became a nullity. In view of the aforesaid
order, the High Court dismissed the civil revision cases filed
by the appellant and allowed the civil revision case filed by the
respondents. It is against this common judgment of the High B
Court that a Special Leave Petition was filed before this Court,
which on grant on leave was heard by us in the presence of
the learned counsel appearing on behalf of the parties.

8. We have heard the learned counsel appearing on behalf
of the parties and perused the materials on record. The issue,
c
which is to be decided in this appeal, whether the decree
passed by the civil court in ignorance of the death of the
defendant, without granting any exemption to the appellant
' .. o\
before the judgment was pronounced, as required under Order
D
XXll Rule 4(4) of the CPC, is sustainable in law.

9. Order XXll Rule 1 of the CPC deals with the question
of abatement on the death of the plaintiff or of the defendant
in a civil suit. Order XXll Rule 2 relates to procedure where
one of several plaintiffs or defendants dies and right to sue E
survives. Order XXll Rule 3 of the CPC deals with procedure
in case of death of one of several plaintiffs or of sole plaintiff.
~
Order XXll Rule 4 of the CPC·, however, deals with procedure
< in case of death of one of several defendants or of sole
defendant. For understanding the issue raised before us in F
this appeal, it would be convenient at this stage to reproduce
Order XXll Rule 4 of the CPC, which runs as under :-

"(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 sole defendant or sole G
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.
H
458 SUPREME COURT REPORTS [2009] 3 S.C.R.

A (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
8
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
c statement or who, having filed it, has filed to appear and
contest the suit at the hearing; and judgment may, in such
case, be pronounced against the said defendant

D
notwithstanding the death of such defendant and shall have
the same force and effect as if it has been pronounced
before death took place." ;
. '

10. A bare perusal of the provisions under Order XXll
Rule 4(3) of the CPC would clearly show that where within the
time limited by law, no application is made under sub-rule 1,
the suit shall abate as against the deceased defendant. It is
E
not in dispute in the present case that the plaintiff appellant
admittedly did not file any application for substitution on the
death of the defendant. Therefore, on the death of the ~

defendant, the suit automatically abates after the time >
prescribed to bring on record the heirs and legal
F representatives of the defendant expires.

11. However, this is subject to Order XXll Rule 4(4) of the
CPC which runs as under :-

G "Order 22 Rule 4 (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 said
H
T. GNANAVEL v. T.S. KANAGARAJ AND ANR. 459
[TARUN CHATIERJEE, J.]
..J
defendant notwithstanding the death of such defendant and A
. shall have the same force and effect as if it has been
pronounced before the death took place."

12. It was argued by Mr. Ranjit Kumar, learned senior
counsel appearing on behalf of the appellant, that in view of B
Order XXll Rule 4(4) of the CPC and in view of the admitted
fact that exemption was obtained by the appellaflt from bringing
-! on record the heirs and legal representatives of the defendant
in the trial court and, therefore, question of bringing on record
the heirs and legal representatives of the defendant would not
arise as Order XXll Rule 4(4) of the CPC clearly says that if c
such exemption is granted by the Court, the effect of such
death would be taken as if the decree was pronounced before
the said death had taken place.
;.
" 13. As noted herein earlier, a plain reading of Order XXll D
Rule 4 (4) of the CPC would clearly show that the Court· is
empowered to exempt a plaintiff from the necessity of
substituting the heirs and legal representatives of any such
defendant who has failed to file a written statement or who,
having filed it, had failed to appear and contest the suit at the E
time of hearing of the same, but such an exemption can only
be granted before the judgment is pronounced and in that
~ case only, it can be taken against the said defendant
' notwithstanding the death of such defendant and such a decree
shall have the same force and effect as it was pronounced F
~
,
before the death had taken place. Mr. Ranjit Kumar, learned
senior counsel appearing on behalf of the appellant relying on
a decision of this Court in the case of Zahiru/ Islam vs. Mohd.
Usman and Others, [2003 (1) SCC 476], argued that since
an application from .exempting the plaintiff/appellant from
G
bringing on record the heirs and legal representatives of the
defendant was filed in the present case but in view of the fact
that exemption under Order XXll Rule 4 (4) was not allowed in
the above mentioned decision and in the aforesaid decision,
no such permission was sought or granted by the Court, the
H
460 SUPREME COURT REPORTS [2009] 3 S.C.R.

A High Court was in error in holding that the decree passed in
the suit for specific performance of the contract by the trial
court was a nullity. We are unable to accede to this submission
of Mr. Ranjit Kumar, the learned senior counsel appearing on
behalf of the appellant for the simple reasons viz. (1) on the
s abatement caused on the death of defendant, the suit
automatically abated in view of the provisions under Order .
XXll Rule 4(3) of the CPC and (2) from the decision in the
case of Zahirul Islam vs. Mohd. Usman and Others, (supra),
it would be evident that no exemption was sought or granted
c under Order XXll Rule 4(4) of the CPC in the aforesaid
decision. In any view of the matter, Order XXll Rule 4(4) of the
CPC clearly says that such exemption to bring on record the
heirs and legal representatives of the deceased could be taken
or granted by the court only before the judgment is pronounced
and not after it.
0
14. In view of our discussions made hereinabove and
after going through the provisions under Order XXll Rule 4(4)
of the CPC, as discussed herein earlier, and in view of the
principles laid down by the aforesaid decision, it is, therefore,
E clear that if exemption, which is provided under Order XXll
Rule 4(4) of the CPC is obtained from the Court before the
delivery of the judgment, in that case, it would be open to the
Court to exempt the plaintiff from bringing on record the heirs •
and legal representatives of the defendant even if, the ,
F defendant had died during the pendency of the suit as if the
judgment was pronounced by treating that the defendant was
alive notwithstanding the death of such defendant and shall
have the same force and effect as if it was pronounced before
the death had taken place. That being the position, we are,
G therefore, of the view that since in this case, admittedly,
exemption was obtained after the judgment was pronounced,
the provision of Order XXll Rule 4(4) of the CPC would not be
attracted.
15. In our view, the aforesaid decision in the case of
H
T. GNANAVEL v. T.S. KANAGARAJ AND ANR. 461
[TARUN CHATIERJEE, J.]
-J
Zahirul Islam (Supra) can also be distinguished on facts. As A
noted herein earlier, in that decision, the plaintiff did not seek
permission of the Court under Order XXll Rule 4(4) of the
CPC and in that view of the matter, this Court held that the
legal representatives of the deceased defendant was entitled
to be brought on record in the suit. Admittedly, in our case, B
after the judgment was pronounced, the permission was sought
to exempt the plaintiff from the necessity of substituting the
heirs and legal representatives of the defendant and not before
it. That being the position, we do not find any ground to rely on
this judgment of this Court as sought by Mr. Ranjit Kumar, c
learned senior counsel appearing for the appellant.

16. This view has also been expressed by Madras High
Court in a decision reported in Elisa and others vs. A. Doss,
.. .. [AIR 1992 Mad. 159], in which the Madras High Court in
paragraph 3 had observed as follows :- D

"It is seen from the rules that an application to bring the
legal representatives on record shall be made within the
time limited by law and if no application is made within the
said period, the suit shall abate as against the deceased E
defendant. That is the effect of sub rule 3. Sub-rule (4)
provides an exception to sub-rule (3). Under Sub-Rule (4),
• it is open to the court to pass an order exempting the
plaintiff from the necessity of bringing on record the legal
representatives of any defendant, who had failed to file a F
"'· written statement or having filed the written statement,
failed to appear and contest the suit at the hearing. But,
the language of sub rule (4) is clear enough to show that
the court must pass an order exempting the plaintiff from
the necessity of substituting the legal representatives. Of G
course, it is not necessary for the plaintiff to file a written
application seeking such exemption, as the rule does not
require one. Under the said rule, the court must apply its
mind and think it fit, in the facts and circumstances of the
case, to grant the exemption. For granting such exemption,
H
462 SUPREME COURT REPORTS [2009] 3 S.C.R.

A the defendant who died should have remained ex parte,
either without filing the written statement or after filing the
written statement. It is clear from the language of the said
rule that the order of exemption shall be passed before
a judgment in the case is pronounced. The relevant
B portion of the said rule reads that the court 'may exempt
the plaintiff' and 'judgment may, in such case
pronounced.' That part of the sub rule says that the order
of exemption should precede the judgment to be
pronounced in the suit ....... " (emphasis supplied)
c 17. For the reasons aforesaid, we are of the opinion that
the High Court had rightly interpreted the provision of Order
XX.II Rule 4 (4) of the CPC and accordingly held that the decree
passed by the trial court on 20th of December, 2002, in O.S. .
No. 3946 of 1999 was a nullity in the eye of law as the defendant
D had died during the pendency of the suit for specific
performance of the contract for sale and no exemption was
sought at the instance of the plaintiff/appellant to bring on record
the heirs and legal representatives of the defendant before the
judgment was pronounced.
E
18. There is another submission that needs to be
considered at this stage. The learned counsel appearing on
behalf of the appellant had contended that the respondents •
were duty bound under the provisions of Order XXll Rule 10
F (A) of the CPC to intimate the knowledge of the death of the
defendant to the court as well as to the appellant, which they
had failed to do and therefore, the trial court was correct in law
to grant exemption to the appellant from bringing on record
the heirs and legal representatives of the defendant after the
decree was passed. As had already been mentioned above,
G the conditions laid down in the above mentioned rule are clear
to the effec.t that the exemption to be granted by the court has
to be obtained before the judgment is delivered and not after
it. Therefore, we are not in a position to accept the contention
of the appellant to this effect. Further, the respondents had
H

_>
T. GNANAVEL v. T.S. KANAGARAJ AND ANR. 463
[TARUN CHATIERJEE, J.]
disputed the fact that they had not intimated the information A
relating to the death of the defendant to the appellant. This
Court is not entitled to go into the question of determining the
veracity of the statements made by either party. Before parting
with this aspect of the matter, it is also an admitted position
that the appellant had not raised the question regarding the B
applicability of the provision under Order XXll Rule 1O(A) of
~· the CPC before the High Court and, therefore, we also cannot
permit the appellant from raising such question for the first
time in this Court.

19. In view of the discussions made herein above and the C
decisions considered by us in this appeal, it is amply clear
that the High Court had rightly held that the order of the trial
court was a nullity and thus the same was liable to be set
• aside. We therefore find no infirmity in the impugned judgment.
The appeal is accordingly dismissed. There will be no order D
as to costs.
G.N. Appeal dismissed .

•