G. N. SABHAHIT, J. ( 1 ) PURSUANT to the, reference made be a learned Single Judge of this Court hon'ble the Chief Justice has placed this M. S. A. for disposal before this bench as it involves a question of law of considerable importance. ( 2 ) THE question of law arises this way. Plaintiff instituted L. C. No. 224 of 1967 for possession and for mesne profits against four defendants. Defendant-3 was duly served but remained absent and he was placed ex-parte on 2. 9. 1968 by the Prl. Munsiff, Ranebennur, before whom the suit was instituted and was pending for hearing. The suit was subsequently dismissed on 2. 6. 1971 for default of the plaintiff. Plaintiff instituted Misc. Appln. No. 6 of 1971 on 17. 6. 1971 before the learned munsiff. Defendant-3 remained absent again in the proceeding and he ultimately died on 23. 3. 1973. The miscellaneous application was allowed on 29. 9. 1973 and the suit was restored to file on 15. 10. 1973. In the suit, I. A. No. II was instituted on 23. 1. 1974 to bring the legal representatives of defendant-3 on record and I. A No. III was instituted by defendants 1 and 2 in the suit to dismiss the suit as abated as the legal representatives of defendant-3 were not brought on record in time and no application was given before the learned Munsiff to set aside the order of abatement. Accordingly, I. A. No. II was dismissed and I. A. No. III was allowed and the suit came to be dismissed as abated. Against that judgment and decree, the plaintiff filed R. A. No. 185 of 1974 before the civil Judge, Haven. Therein, the plaintiff filed LA. No. IX under Or. XXII, R. 4 (4) CPC with a prayer to exempt him from bringing the legal representatives of defendant-3 on record. The learned Appellate Judge allowed the interlocutory application, granted exemption and on hearing, allowed the appeal, set aside the judgment and order of the trial Court and remanded the suit tor fresh disposal, in accordance with law, to the learned Munsiff. Aggrieved by the said judgment and order, some of the legal representatives of defendant-1 and defendant -2 have instituted the above second appeal before this Court. ( 3 ) THE learned Counsel appearing for the appellants strenuously urged before us that the learned Civil Judge had! Aggrieved by the said judgment and order, some of the legal representatives of defendant-1 and defendant -2 have instituted the above second appeal before this Court. ( 3 ) THE learned Counsel appearing for the appellants strenuously urged before us that the learned Civil Judge had! no jurisdiction to exercise the, powers contemplated under Or. , XXII, r. 4 (4) CPC as amended by the Amending act of 1976. ( 4 ) AS against that, the learned counsel appearing for the respondents plantiffs argued supporting the judgment and order the learned Civil judge. ( 5 ) THE sole question of law that arises for our consideration in this appeal is :whether the learned Civil Judge was competent to entertain the application under Or XXII, R. 4 (4) of CPC and exempt the plaintiff from bringing the legal representatives of defendant-3 on record. ( 6 ) ORDER XXII, R. 4 (4) of CPC reads :"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 agianst the said defendant notwithstanding the, depth of such defendant and shall have the same force and effect as if it has been pronounced before death took place. "thus, sub-rule (4) to Rule 4 of Or. XXII CPC makes it very clear that application shall be made before that; court where the procqedings were pending at the time of the death of the concerned defendant. ( 7 ) THIS Court, in the case, Rahim s. A. v. Rajamma (1) has explained that the Court is empowered by the express language of Or. XXII, R. 4 (4) cpc to exercise thq power of exemption whenever it thinks fit before the the disposal of the suit, even though the request is made after 90 days after the death of the deceased defendant. ( 8 ) AT any rate, it becomes obvious that the application should be made and the order should be passed by the concerned Court before the judgment in the case is pronounced. ( 9 ) IN the instant case, Deft.-3 died on 23. 3. 1973 when Mis. Appln. No. 6 of 1971 was pending consideration before the learned Munsiff, Ranebennur. ( 9 ) IN the instant case, Deft.-3 died on 23. 3. 1973 when Mis. Appln. No. 6 of 1971 was pending consideration before the learned Munsiff, Ranebennur. Therefore, the proper Court before which the application contemplated under or. XXII, R. 4 (4) CPC should have been made was the Munsiff's Court Ranebennur. It could not lie obviously before the learned Civil Judge while hearing the appeal against the judgment and decree passed by the learned munsiff, as narrated above. That is the contention raised before us by the learned Counsel appearing for the appellants and we are of the considered view that there is substance in the submission so made. ( 10 ) READING Or. XXII, R. 4 (4) cpc carefully, we are of the view that the application for exemption to bring the legal heirs on record can be made before the Court before which an application for legal representatives could be made. The other conditions for giving such an application are; that such defendant should have failed to appear before the Court on service of summons or having appeared he should not have filed the written statement or having filed the written statement he should fail thereafter to appear and contest the suit at the hearing. In such circumstances, the application for exemption could be made by the plaintiff to exempt him frqm bringing the legal representatives of such defendant on record. We, therefore, hold that such an application could not have been made before the Appellate Court and the question is, what should have been the proper course for the for the Appellate court to deal with such an application if given ? ( 11 ) THE Appellate Court, in the interest of justice, should have, if it felt it necessary to do substantial justice, allowed the appeal and send down the application for consideration by the trial Court as the same should have been given before the trial Court. ( 12 ) THE next question that arises for our consideration is as to the stage at which the application for exemption under Or. , XXII, R. 4 (4) CPC should be submitted to the Court. ( 12 ) THE next question that arises for our consideration is as to the stage at which the application for exemption under Or. , XXII, R. 4 (4) CPC should be submitted to the Court. ( 13 ) AS stated above, this Court, in the case, S. A. Rahim v. Rajamma (1) has held that the application could be given before the judgment in, the case is pronounced, differing from the view taken by the High Court of Orissa in the case Lakshmi Charon Panda v. Satyabadi Behara (2 ). This Court, relying on the decision rendered by the high Court of Madras in similar circumstances, in Velappan Piliai v. Parappan Panickar, (3), came to the conclusion by analysing Or. , 22, r. 4 (4) C. P. C. It has observed :"besides, it appears to me having regard to the language of sub-rule (4) which provides that the power of exemption under sub-rule (4) can be exercised by the Court whenever it thinks fit, no such limitation on the power of that High Court in the matter of granting exemption can be inferred. The court is empowered by the express language in sub-rule (4) to exercise the power of exemption whenever it thinks fit before the disposal of the suit. "the same view is taken in, a more recent decision by a Division Bench of the patna High Court in the case Rajnath sahgal vs. Shiva Prasad Sinha (4 ). We respectfully accept the view taken by this Court earlier that the power of exemption could be exercised by the court till the case is disposed of by pronouncing judgment, though the high Courts of Orissa and of Calcutta have taken the view that the said power of granting exemption can be exercised by the Court before abatement of proceeding takes place, vide AIR 1964 orissa 39 and Annapurna Debi vs. Smt. Harsundari Dassi (5 ). ( 14 ) IT may also be noted in this context that there, is provision for setting aside the abatement in the C. P. C. by giving good reasons and limitation commences for the purpose of setting aside abatement from the date of knowledge. Such enabling provisions are not there in Or. ( 14 ) IT may also be noted in this context that there, is provision for setting aside the abatement in the C. P. C. by giving good reasons and limitation commences for the purpose of setting aside abatement from the date of knowledge. Such enabling provisions are not there in Or. 22, R. 4 (4) C. P. C. Hence we are persuaded to accept the view taken by this Court that the power of exemption can be exercised before the judgment is pronounced in the case in view of the provision made conomine in Or. 22 Rule 4 (4) C. P. C. ( 15 ) TURNING to the facts of the present case, the evidence on record shows that defendant No. 1 died on 23. 3. 1973 when the Misc. Appln. 6/71 was pending before the trial Court. No steps, however, were taken by the plaintiff for bringing his legal representatives on record in the case. Therefore, it is obvious that all the proceedings in that misc. Appln. after the death of defendant would be rendered nullity in the eye of law. (Vide Mrs Gladys Coutts vs. Dharkhansing (6 ). That being so all the proceedings commencing from the order passed in Misc. Appln. No. 6/71 would be a nullity and the same has to be set aside. Hence, it is obvious that the application given for exemption under Or. 22, R. 4 (4) c. P. C. has to be dealt with by the court sitting in Misc. Appln. No. 6/71 as the order in that proceeding is not yet passed as per law. ( 16 ) IT may also be noted in this context that though the provision, namely, or. 22, R. 4 (4) C. P. C. was incorporated in the Civil Procedure Code by the Amending Act, 1976, the said provision already existed in the Civil Procedure code applicable to Karnataka right from the year 1969. Hence, no argument was advanced before us that the provision was not in existence at the time when the suit was filed or at the time when defendant-3 died in 1973. The amended provision was already existing in the C. P. C. in assam, Andhra Pradesh, Calcutta, Madras and in Kamataka much earlier. ( 17 ) IN the result, the appeal is allowed. The amended provision was already existing in the C. P. C. in assam, Andhra Pradesh, Calcutta, Madras and in Kamataka much earlier. ( 17 ) IN the result, the appeal is allowed. The impugned judgment and decree as also all the proceedings subsequent to the death of defendant No. 3 in Misc. Appln. No. 6/71 including the order passed in Misc. Application and the judgment and decree passed thereafter by the trial Court and first appellate court in the proceeding are hereby set asidle and I. A. 9 instituted in R. A. 185 of 1974 shall now to be considered in Misc. Appln. No. 6/71, by the Munsiff court, Ranebennur and the Court shall proceed to dispose of the application in accordance with law in the light of observations made above. Accordingly, the appeal is allowed and the case is remitted back to the Munsiff Court, ranebennur to proceed with the hear ing of the Misc. Appln. No, 6/71 or considering the application given for exemption from bringing the legal representatives of defendant No. 3 on record, vide I. A. 9 in R. A. 185/74. ( 18 ) PARTIES are directed to bear their respective costs of the proceedings. Parties are directed to be present before the trial Court on 29. 8. 1983 to take further instructions. Send back the concerned Records to the trial Court forthwith. --- *** --- .