ZAHIRUL ISLAMversusMOHD. USMAN AND ORS.
- Citation
- 2002 INSC 569
- Decided
- 20 December 2002
- Disposal
- Appeal(s) allowed
Holding
A plaintiff must obtain the court’s permission under Order 22 Rule 4(4) to be exempted from substituting the legal representative of a deceased defendant; absent such permission, the legal representative must be brought on record and the ex parte decree is invalid.
Summary
The plaintiff, Zahirul Islam, sued Mohd. Usman and others. One of the defendants (Defendant No.2) died on 1 February 1995, but the trial court proceeded ex parte against him without substituting his legal representative. The legal representative later sought a stay of execution of the decree under Order 9 Rule 13 of the Code of Civil Procedure, 1908, but the application was dismissed. The High Court upheld the ex parte decree, holding that the plaintiff was not required to bring the legal representative on record. On appeal, the Supreme Court held that the plaintiff must obtain permission under Order 22 Rule 4(4) to be exempted from substituting the deceased defendant’s legal representative; since no such permission was obtained, the legal representative must be brought on record and the ex parte decree cannot stand. Consequently, the High Court’s order was set aside and the appeal was allowed.
Issues considered
- Whether a plaintiff may obtain a judgment ex parte against a deceased defendant without substituting the legal representative under Order 22 Rule 4(4) of the CPC.
- Whether the plaintiff is required to seek permission from the court to be exempted from bringing the legal representative of a deceased defendant.
Legislation cited
- Code of Civil Procedure, 1908s. Order 22 Rule 4(4), s. Order 9 Rule 13
Subjects
Judgment
A ZAHIRUL ISLAM
V.
MOHD. USMAN AND ORS.
DECEMBER 20, 2002
B [SYED SHAH MOHAMMED QUADRI, ASHOK BHAN AND
S.B. SINHA, JJ.]
Code of Civil Procedure, I 908 4 I
c Order 22, r.4(4) and Order 9, r. I 3-Death of defendant-Procedure-
Suit-Proceeaed ex parte against defendant-2, who later died-Suit decreed
ex parte against D-2-His legal representaYive seeking, under Order 9 r. I 3,
stay of execution of decree-Application dismissed-Revision also dismissed
by High Court-Held, plaintiff did not seek permission contemplated under
D sub-rule(4) of rule 4 of Order 22, from exempting him from bringing on
.
record the legal representative of D-2-0rders of courts below set a,5ide -
legal representative of D-2 is entitled to be brought on record in the suit.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 863 I of2002.
E From the Judgment and Order dated 11.1.2000 of the Delhi High Court
in C.R. No. 25 of 2000.
Nafis A. Siddiqui for the Appellant.
Ms. Binu Tamta, Ms. V. Deepa for Ms. Indu Malhotra and Ms. Pratibha
F Jain (N.P.) for the Respondents.
The following Order of the Court was delivered :
Despite service of notice, none appears for Respondent No. I.
G Leave is· granted.
This appeal is filed against the order of the High Court at Delhi in Civil
Revision Petition No. 25 of 2000 made on January 11, 2000.
The impugned order was passed by the High Court on the application. \
H 712
ZAHIRUL ISLAM v. MOHD. USMAN 713
of the appellant-legal representative of deceased Defendant No.2 who is said A
to have died on Ist February, 1995. He sought stay of execution of the decree
in proceedings under Order IX Rule 13 of the Code of Civil Procedure, 1908.
That application was dismissed·. He approached the High Court by filing civil
revision petition. The High Court dismissed the revision on the ground that
the deceased Defendant No.2 had not chosen to appear before the trial court B
and the matter proceeded ex-parte during his liftetime. The order of the High
Court is under challenge in this appeal.
It would be necessary to refer to Order XXII Rule 4 of the Code of
Civil Procedure, 1908, insofar as it i.s relevant, which reads as under:
c
"4. Procedure in case of death of one of several defendants or of sole
defendant.-
(I) to (3) xxx xxx xxx
(4) The Court whenever it thinks fit, may exempt the plaintiff from D
the necessity of substituting the legal representatives of any such
defendant who has failed to file a wr!tten 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.defendant
notwithstanding the death of such ·defendant and shall have the same E
force and effect as if it has heen pronounced before the death took
place."
A perusal of sub-rule (4), extracted above, shows that a plaintiff may
be exempted from the necessity of substituting the legal representatives of a
defendant who has failed to file a written statement or who, having filed it, F
failed to appear and contest the suit at the hearing and that, in such a case,
the judgment may be pronounced against the said defendant notwithstanding
the death of such defendant and it shall have the same force and effect as if
the judgment has been pronounced before the death took place.
In the instant case, it is stated by the learned counsel appearing for the
G
appellant that no permission contemplated under sub-rule (4) was obtained
from the court exempting the plaintiff from bringing on record the legal
representative of deceased Defendant J:-Jo.2. From the order under challenge
also, it does not appear that any such permission was sought or granted by
the Court. In this view of the matter, the order under challenge cannot be H
714 SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.
A sustained. It is, accordingly, set aside. The appellant was, therefore, entitled
to be brought on record in the suit.
The civil appeal is, accordingly, allowed.
No costs.
B
R.P. Appeal allowed.
..
i. '
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