JUDGMENT This summons has been taken out by the Official Liquidator, inter alia, for setting aside abatement of the misfeasance proceedings against the respondent No.3, Kalachand Roy, deceased, and for substitution of his heirs in his place in the said proceedings. 2. From the facts as disclosed in the affidavit of Debnarayan Dutta affirmed on 19th June, 1996, in support of the Judges Summons, it appears that the Company in liquidation was directed to be wound up by an order passed by this Court on 12th July, 1957, and the Official Liquidator of this Court, initiated misfeasance proceedings against the ex-Directors on or about 11th July, 1962. 3. The matter was heard on 15th September, 1981, and an order was passed in the misfeasance proceedings directing the respondents Nos. 2 to 5 to pay the Official Liquidator a sum of Rs. 22,11,782/-, together with interest thereon at the rate of 6 per cent per annum and costs of the application. 4. The said order/decree was put into execution by the Official Liquidator on 22nd August, 1990, by filing Tabular Statement wherein Kalachand Roy, the respondent No.3, was shown to have died and his heirs were named in his place. 5. In the execution proceedings it came to light that Kalachand Roy had died on 6th August, 1980, prior to the passing of the decree on 15th September, 1981. Consequently, by an order passed on 23rd April, 1996, a learned Judge of this Court held that the decree was a nullity as against Kalachand Roy, deceased, and was not therefore, executable against his heirs, who were exonerated from the execution proceedings. 6. The instant summons was thereupon taken out by the Official Liquidatar, inter alia, for setting aside abatement of the misfeasance proceedings as against Kalachand Ray and far substitution of his heirs in his place in the said proceedings. 7. Appearing in support of the Summons, Mr. Dipak Basu urged that in view of the provisions of sub-rule (5) of Rule 4 of Order XXII of the Cede of Civil Procedure, the Court could always set aside the abatement and restore the misfeasance proceedings against the heirs of the deceased. 8. In this connection, Mr. Basu referred to. 7. Appearing in support of the Summons, Mr. Dipak Basu urged that in view of the provisions of sub-rule (5) of Rule 4 of Order XXII of the Cede of Civil Procedure, the Court could always set aside the abatement and restore the misfeasance proceedings against the heirs of the deceased. 8. In this connection, Mr. Basu referred to. the, decision of the Supreme Court in (1) State of Madhya Pradesh v. S. S. Akolkar reported in AIR 1996 SC Page 1984, wherein it was observed that in considering a question relating to setting aside abatement, the considerations were distinct and different from the considerations for condonation of delay under Section 5 of the Limitation Act. Furthermore, delay in official business was required to be approached from a public Justice perspective and when an application was filed on behalf of the State, such considerations were required to be kept in mind. 9. Mr. Basu then referred to another decision of the Han'ble Supreme Court in (2) State of Haryana v. Chandramoni and Ors. reported in 1996 (3) SCC at Page 132, where the same sentiments had been expressed and it had also been observed that in matters relating to condonation of delay the State cannot be put on the same footing as an individual. 10. Mr. Basu contended that in such circumstances the abatement of the suit, as far as the defendant No. 3 was concerned, was liable to be set aside and his heirs were required to be substituted in his place so that the decree could also be executed against, them. 11. Opposing the prayers mage an behalf of the Official Liquidator, High Court, Calcutta, Mr. Dipak Shome, who appeared for the heirs of deceased Kalachand Roy submitted that such prayers were misconceived and were not sustainable in law. He urged that since Kalachand Ray had died prior to the passing of the decree and since his heirs had not been substituted prior thereto, the decree, as far as he is concerned, is a nullity and is not capable of being executed against his heirs. Mr. Shome urged that while the decree bad been passed on 15th September, 1981, in the Affidavit-in-Opposition affirmed by the respondent No.2 in the execution proceedings, it had been disclosed that the respondent No.3 had died on 6th August, 1980. 12. Mr. Mr. Shome urged that while the decree bad been passed on 15th September, 1981, in the Affidavit-in-Opposition affirmed by the respondent No.2 in the execution proceedings, it had been disclosed that the respondent No.3 had died on 6th August, 1980. 12. Mr. Shome submitted that the provisions of Order XXII, Rule 4 did not contemplate a situation where a decree had been passed in favour of the plaintiff but contemplated a situation where the suit had abated against a defendant and had as a consequence been dismissed against him. 13. Mr. Shome urged that Mr. Basu's submissions regarding sub-rule (5) of Rule 4 of Order XXII of the Civil Procedure Code could not, therefore, be accepted without setting aside the entire decree. 14. In support of his said submissions Mr. Shome firstly referred to a Bench decision of this Court in the case of (3) Nanigopal Mukherji v. Panchanan Mukherji and Ors. reported in 59 Calcutta Weekly Notes at Page 304, wherein it had been held that where no application had been made for substitution under Order XXII Rule 4 (1) of the Code of Civil Procedure and no order for exemption bad been made under the provisions of sub-rule (4) of Rule 4 of Order XXII, the suit shall abate. The Court's power to exempt under Order XXII Rule 4 (4) can be exercised only before an abatement has taken place and cannot be exercised after such abatement. He also referred to and relied on a Single Bench decision of the Madras High Court in (4) Elisa and Ors. v. A. Doss reported in AIR 1992 Madras at Page 159, wherein it was observed that the decree obtained against a dead person without complying with the provisions of sub-rule (4) of Rule 4 of Order XXII of the Code of Civil Procedure is a nullity and is not executable against the legal heirs and representative of the deceased defendant. 15. Mr. Shome urged that the prayers made on behalf of the Official Liquidator, High Court, Calcutta, was wholly misconceived and were liable to be rejected with cost. 16. On consideration of the submissions made on behalf of the respective parties, there is little doubt that Mr. Shome's submissions have considerable force. 15. Mr. Shome urged that the prayers made on behalf of the Official Liquidator, High Court, Calcutta, was wholly misconceived and were liable to be rejected with cost. 16. On consideration of the submissions made on behalf of the respective parties, there is little doubt that Mr. Shome's submissions have considerable force. In the absence of any exemption granted by the Court under sub-rule (4) of Rule 4 of Order XXII of the Code of Civil Procedure, the decree against the• deceased defendant No.3, Kalachand Roy, is a nullity and cannot, therefore, be executed against his heirs as had already been held earlier by Shyamal Kumar Sen, J. on 23rd April, 1996. Accordingly, the prayer for substituting the heirs of deceased Kalachand Roy in the misfeasance proceedings after a decree had been passed therein subsequent to Kalachand Roy's demise, is, in my view, not maintainable in law and is liable to be dismissed. 17. The decisions cited by Mr. Basu on behalf of the Official Liquidator contemplate a situation where an order of abatement had been recorded against a particular defend ant and the suit had not been decreed in favour of the plaintiff. The circumstances in this case are totally different and having regard to the observations made hereinbefore distinguish this case from those cited by Mr. Basu. 18. The prayer made on behalf of the Official Liquidator for substitution of the heirs of deceased Kalachand Roy in the decree which had been passed in the misfeasance proceedings is, therefore, rejected, but without any order as to costs. All parties to act on a signed copy of the operative part of this judgment on the usual undertaking.