ORDER D.M. Dharmadhikari, J. 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 13.9.1990 passed by the Court of First Additional District Judge, Sagar in revision under Section 115 C. P. C. whereby the order dated 11.7.1987 passed by the II Civil Judge Class I, Sagar setting aside the ex-parte decree against the petitioner under Order 9 Rule 13 C. P. C. has been set aside. 2. The respondent no. 1 filed Civil Suit No. 292-A of 1983 against late Ramkumar, sole defendant to the suit, for specific performance of the alleged contract of agreement of sale of agricultural lands bearing Khasra Nos. 45/1 and 45/2 - total 4.89 acres of village Pipariaband, tahsil and district Sagar. It was alleged that late Ramkumar under an agreement dated 6.2.1976, promised to sell the aforesaid lands to the plaintiff for a sum of Rs. 6, 000/- out of which an amount of Rs. 1, 651/- was paid as advance consideration. 3. Late Ramkumar, as the sole defendant, filed a written statement to contest the suit. The plea taken in the written statement was that a very small amount was taken from the plaintiff for which a receipt was executed admitting the liability of Rs. 1,651/-. It was pleaded that a sum of Rs. 1,800/- was already paid. it was stated that the alleged agreement of sale was only in lieu of a money lending transaction between the parties and the defendant was entitled to the protection of the "M. P. Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976." 4. On 18.4.1984, late sole defendant named above was absent in the suit and was proceeded ex-parate by the court. The sole defendant died on 4-7-1984. 5. The respondent no.1 as plaintiff in the suit without making any application for substituting the names of the present petitioners (widow and minor children) moved an application under Order 22, Rule 4(4) of the Code of Civil Procedure seeking exemption form substitution the legal representives of the defendant on record stating that the defendant failed to appear and contest the suit at the hearing. The Court allowed that application seeking exemption from substituting the legal representatives of the deceased-defendant and passed an ex-parte decree for specific performance of the contract on 24.11.1984. 6. The Court allowed that application seeking exemption from substituting the legal representatives of the deceased-defendant and passed an ex-parte decree for specific performance of the contract on 24.11.1984. 6. The respondent no.1 then started proceedings for execution on 23-1-1985 and in that application brought the legal representatives on record. Notices to the legal representatives were sent in the execution proceedings, but the notices were returned with the endorsement of the alleged refusal by the notices to accept notice. The said fact is recorded in the order sheet of the Executing Court dated 18.2.1985. 7. The petitioner no. 1, the widow of deceased defendant, came to know in March 1985 that some ex-parte decree was being sought to be executed against the legal representatives. She, therefore, made an application on behalf of the petitioners under Order 9 Rule 13, CPC on 18.3.1985. The above facts were stated and it was also stated in the said application that notices sent in the execution case were not served on petitioner no 1., who was the only major member in the family and the alleged refusal, if any, by petitioners nos. 2 to 6 who were minors had no legal consequence so as to presume service of notice. In the application for setting aside the ex-parte decree, it was stated that on 18.4.1984 when the deceased defendant was proceeded expert he was seriously ill and ultimately died on 4.7.1984. It was submitted that thereafter the petitioner no. 1 as his widow was also not in fit physical and mental condition to take stock of any litigation and in fact had no knowledge of the ex-parte proceedings and the decree passed against the deceased defendant. It was stated that soon after deriving the knowledge of the ex-parte, decree, consequence to the initiation of execution proceedings, she filed the application for setting aside the ex-parte decree. 8. The learned trial Judge recorded evidence of the parties under Order 9 Rule, 13 C. P. C. and came to the conclusion that the legal representatives were prevented by sufficient cause to contest the suit after the death of the original defendant. The learned Judge, therefore, allowed the application and not aside the ex-parte decree. 9. The respondent no. 8. The learned trial Judge recorded evidence of the parties under Order 9 Rule, 13 C. P. C. and came to the conclusion that the legal representatives were prevented by sufficient cause to contest the suit after the death of the original defendant. The learned Judge, therefore, allowed the application and not aside the ex-parte decree. 9. The respondent no. 1 was plaintiff then preferred a revision under Section 115 C. P. C. to the Court of Additional District Judge who by the impuned order has allowed the revision and set aside the order of the trial Court which this petition has been filed. 10. In setting aside the order of the trial Court, the revisional Court held that where exemption is granted by the Court for substitution of legal-representatives in exercise of powers under Order 22, Rule 4 (4) of the Code, application under Order 9, Rule 13 C. P. C. could have been made only by the original defendant and even if it is assumed that after his death the legal representatives could make such an application, the ex-parte decree cannot be set aside as the sufficient cause for which the deceased was unable to attend the Court on the date on which he was proceeded ex-parte was within the exclusive knowledge of the deceased-defendant. The learned Judge of the revisional Court then held that it was necessary for the legal representatives to have proved that on 18.4.1984 when the deceased defendant was proceeded ex-parte, there was sufficient cause for his non-appearance. It is held that no such evidence has been produced to prove sufficient cause for his non-appearance on 18.4.1984 and/therefore, the ex-parte decree could not be set aside. The revisional Court also held that the application for setting aside ex-parte decree was barred by time as the same was filed after the prescribed limit of 30 days. The revisional Court observed that the remedy of the legal representatives was to prefer an appeal against the decree. 11. The revisional Court also held that the application for setting aside ex-parte decree was barred by time as the same was filed after the prescribed limit of 30 days. The revisional Court observed that the remedy of the legal representatives was to prefer an appeal against the decree. 11. Strangely enough, the learned Judge of the revisional Court also upheld the correctness of the order of the trial Judge in the suit in granting exemption to the plaintiff from substituting the legal representatives of the sole defendant under Order 22, Rule 4 (4) of the C. P. C. It has been held that the deceased-defendant's plea that the alleged transaction of agreement of sale was in fact a security for loan was also a fact within the exclusive knowledge of the deceased-defendant and, therefore, the trial Court in the suit committed no error in granting the exemption from substitution. 12. I have heard learned counsel Shri K. N. Agrawal assisted by Smt. Sneh Mishra for the petitioners and Shri N. S. Kale, Senior Advocate, appearing for the respondent no. 1. On behalf of the petitioners, it is contended that where the Court exercises power of granting exemption to the plaintiff of substituting the legal representatives of the sole defendant, the legal representatives of the sole defendants can file an application under Order 9, Rule 13 C. P. C. for setting aside any ex-parte decree passed in the suit and it is not necessary for the legal representatives to suffer the decree and prefer an appeal against the decree as the only remedy. 13. Shri N. S. Kale, learned Senior Advocate, has very fairly placed the legal provisions before this Court as the point raised in this petition on the scope and effect of the provisions of Order 22, Rule 4 (4) CPC and the rights of the legal representatives who were not brought on record in the suit, is one of general importance. Sub-rule (4) of Rule 4 of Order 22 of the Code of Civil Procedure was inserted by C. P. C. Amendment Act, 1976 w. e. f. 1.2.1977. Sub-rule (4) of Rule 4 of Order 22 of the Code of Civil Procedure was inserted by C. P. C. Amendment Act, 1976 w. e. f. 1.2.1977. It reads as under: (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 defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. 14. The objects and reasons for introducing such a sub-rule was only to avoid unnecessary delay in the trial of the suit for impleading legal representatives of a non-contesting defendant. The object and reasons read as under: The committee were informed during the course of evidence by various witnesses that the delay in the substitution of legal representatives of the deceased defendant was one of the cause of delay in the disposal of suits. The committee were also informed, that, as a remedial measure, the Calcutta, Madras, Karnataka and Orissa High Courts had inserted a new sub-rule in Rule 4 of Order XXII to the effect that substitution of the legal representatives of a non-contesting defendant would not be necessary and the judgment delivered in the case would be as effective as it would have been if it had been passed when the defendant was alive. The Committee, are therefore, of the view that in order to avoid delay in the substitution of the legal representatives of the deceased defendant and consequent delay in the disposal of the suits, similar provision should be made in the Code itself.... Attention of this Court is also invited to provisions of Section 146 of the Code which enables the legal representatives to take some proceedings which the deceased person could have taken. Section 146 CPC reads as under: 146. Save as otherwise provided by this Code or by any law for the time being in force, where any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against person claiming under him. 15. Section 146 CPC reads as under: 146. Save as otherwise provided by this Code or by any law for the time being in force, where any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against person claiming under him. 15. From the objects and reasons, as mentioned above, in introducing Sub-rule (4) of Rule 4 of Order 22 C. P. C, it is clear that to avoid delay in disposal of the suit by bringing on record the legal representative of non-contesting defendant / defendants, the discretionary power has been conferred on the Court trying the suit to exempt a party from substituting the legal representatives of such defendant / defendants. The procedural provisions are hand-maid of justice and they should not be so exercised as to impede the course of justice or to frustrate it. In Lakshmanan v. Chidambaram A.I.R. 1935 Mad. 236, it has been observed that the power to grant exemption is discretionary and probably it will rarely be exercised in the case of a single defendant. Where there are several defendants and one or more of them are not contesting or fail to contest, the discretion to grant exemption from substituting legal representatives may be exercised to fulfill the object of the sub-rule of avoiding delay of trial and decision of the suit. On the facts of this case, the grant of exemption from substituting legal representatives has in fact caused great injustice to the rights of the legal representatives. 16. As has been mentioned above, the deceased defendant Ramkumar had filed the written statement and was contesting the suit. Only on 18.4.1984 he was absent on which date he was proceeded ex-parte. He died on 4.7.1984. For his non-appearance on one date when he had contested the suit by filing written statement, no circumstance exist for the Court to exercise the power of exemption for substituting his legal representatives. Sub-rule (4) of Rule 4 of Order 22 C. P. C. was introduced only with the object of avoiding delay in observing the formalities of substituting legal representatives of a non-contesting party. The power under Sub-rule (4) has to be exercised with great caution because the power can be invoked by a skillful party with ulterior purpose. Sub-rule (4) of Rule 4 of Order 22 C. P. C. was introduced only with the object of avoiding delay in observing the formalities of substituting legal representatives of a non-contesting party. The power under Sub-rule (4) has to be exercised with great caution because the power can be invoked by a skillful party with ulterior purpose. The said provision is capable of great abuse and possibility of great mischief can not be ruled out. In the present case, deceased Ramkumar was the sole defendant and had filed a written statement taking the plea that the agreement evidenced only a loan transaction. He was survived by widow and minor children. The property to the extent of 4.89 acres was agreed to be sold only for a sum of Rs. 6000/-. After grant of exemption from substitution of legal representatives, there was no one to contest the suit. In cases of sole defendant, the sub-rule (4) may be applicable, but as held in the Madras Case (supra) the power has to be sparingly very cautiously exercised. It has, however, to be held that in exercising power of granting exemption Sub-rule (4) of Rule 4 of Order 22 of the C. P. C, the trial Court did not observe due care and caution and ignored the facts and circumstances of the case, particularly the stage of the suit at which exemption was sought by the opposite party for obtaining an ex-parte decree just by a walk over. 17. The other relevant question which arises, as a corollary to the first question, is where the power of grant exemption from substitution of legal representatives under Sub-rule (4) of Rule 4 has not been duly exercised what would be the remedy available to the legal representatives of such deceased defendant who were not brought on record in the suit. The decision brought to the notice of this Court in Saligram Bindalal v. Pundalik Baliram (1) 1955 N.L.J. 380, to a great extent, supports the petitioners' contention that after derivation of knowledge of the ex-parte decree, by taking recourse to the provisions of Section 164 of the Limitation Act they could make an application under Order 9, Rule 13. C. P. C. to the Court for setting aside the ex-parte decree. See the following observations of the Division Bench of this Court in Saligram's case (supra):- In Venkatasubbaiyer v. Krishnamurthy I.L.R. 38 Mad. C. P. C. to the Court for setting aside the ex-parte decree. See the following observations of the Division Bench of this Court in Saligram's case (supra):- In Venkatasubbaiyer v. Krishnamurthy I.L.R. 38 Mad. 442, the executor of the defendant, who died seven days after the ex-parte decree was passed against him, was held to the entitled to apply for setting aside the decree even though he was not brought on record when the application was made. It was observed in that case that on the true construction of article 164 of the Indian Limitation Act read with Section 146 of the Code of Civil Procedure, the word 'defendant' in Article 164 was vide enough to include the executor of the original defendant.... Relying on the Madras case in Ventatasubbaiyer (supra) the Division Bench (supra) of this Court held that an application under Order 9, Rule 13 C. P. C., if it could have been made by the deceased-defendant, could be made after his death by his legal representatives by taking recourse to Sub-rule (4) of Rule 4 of Order 22 and such an application could be made within 30 days from the date of knowledge of the decree. The revisional Court, therefore, clearly erred in holding that the application under Order 9, Rule 13 C. P. C. could not have made by the legal representatives of the deceased - defendant and the only remedy available to the legal representatives was to challenge the decree by filing an appeal. The reasoning of the revisional Court is somewhat queer that as sufficient cause of non-appearance on 18.4.1984 was a fact exclusively within the knowledge of the deceased therefore, the legal representatives cannot seek setting aside of the ex-parte decree on the alleged sufficient cause of non-appearance available as a ground only to the deceased-defendant. The reasoning is fallacious. Whatever grounds were available to the deceased defendant are available to the legal representatives as is clear from the language of Sub-rule (4) of Rule 4 of Order 22 as also that of Section 146 C. P. C. Sub-rule (4) of Rule 4 of Order 22 by use of the following quoted expression creates a legal fiction that the decree although passed in the absence of legal representatives, shall have the same force and effect as if it has been pronounced before the death took place: ... and judgment 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 place. 18. The revisional Court in rejecting the application under Order 9, Rule 13 C. P. C. filed by the legal representatives, also held that the application was barred by limitation. Where the legal representatives are not brought on record in the suit because of the grant of exemption from substitution under Sub-rule (4) of Rule 4 of Order 22, and application for setting aside ex-parte decree by the legal representatives could be made only when the legal representatives, got knowledge of the suit or the decree. In the instant case, in the trial Court evidence was recorded and the learned trial Judge believed the evidence of petitioner no. 1 that she alone was the adult member in the family and the other legal representatives were minors. After death of her husband representatives were minors. After death of her husband (deceased Ramlal) she was herself unwell because of her abortion. She came to know about the suit and ex-parte decree only in March 1985 when the execution proceedings were commenced. The notice of execution was never served on the petitioner no. 1 and refusal, if any, of minor legal representatives was in-effectual. On the above facts, the application under Order 9, Rule 13 C. P. C. filed by the legal representatives could not be held to be barred by time as it was within time from the date of knowledge of the ex-parte decree. The learned Judge of the revisional Court is also not correct in holding that in an application under Order 9 Rule 13 by the legal representatives, in such a situation, the sufficient cause to be considered is only of non-appearance of the deceased defendant on the date he was proceeded ex-parte. Under Order 9, Rule 13 C. P. C, the petitioner, as legal representatives of the deceased-defendant, were entitled to prove their own cause as sufficient for which they could not apply themselves for substitution and appear in the suit to contest the same. Such a sufficient cause of the legal representatives could be set up on the express language of Order 9, Rule 13 read with Section 146 of the Code. 19. Such a sufficient cause of the legal representatives could be set up on the express language of Order 9, Rule 13 read with Section 146 of the Code. 19. In the instant case, the petitioner have duly proved in the trial Court that on the date on which the deceased-defendant was proceeded ex-parte he was sick and eventually died. The legal representatives had no knowledge of the pendency of the suit and the passing of the ex-parte decree. They derived knowledge of the suit and the decree only when they heard about the execution proceedings in the village. The above facts proved by the legal representatives constituted a sufficient cause within the meaning of Order 9, Rule 13 C. P. C. and on proof thereof, the trial Court was fully justified in setting aside the ex-parte decree. Strangely enough, the learned Judge of the revisional Court upheld the order of the trial Court in granting exemption from substitution under Sub-rule (4) of Rule 4 of Order 22 by stating that even if the legal representatives would have been brought on record of the suit it could not have any effect on the result of the suit because whether the agreement of sale was genuine transaction or one of loan was within the exclusive knowledge of the defendant himself. Such a reasoning, on the face of it, is perverse, whatever pleas were available to the deceased defendant could have been set up and sought to be proved by the legal representatives including the main plea urged in the written statement that the agreement of sale was in fact a loan transaction. This Court, therefore, is clearly of the opinion that the revisional Court grossly erred in interfering in a well reasoned order of the trial Court. The trial Court had passed the order on due appreciation of the facts and circumstances and in valid exercise of power under Order 9, Rule 13 C. P. C. Such order could not have been interfered with in exercise of revisional powers under Sec. 115 of the Code. 20. Before concluding the judgment, it is necessary to point out that sub-rule (4) of Rule 4 as introduced in the Code for a beneficial purpose of avoiding delay of trial of suit impleading legal representatives of non-contesting parties is susceptible to wicked abuse at the instance of clever parties. 20. Before concluding the judgment, it is necessary to point out that sub-rule (4) of Rule 4 as introduced in the Code for a beneficial purpose of avoiding delay of trial of suit impleading legal representatives of non-contesting parties is susceptible to wicked abuse at the instance of clever parties. In order to protect the interests of the legal representatives, who are not brought on record, a provision similar to one introduced in Punjab, Haryana and Chandigarh is highly desirable in other States including Madhya Pradesh, in the interest of administration of justice. The additional Rule added in Punjab, Haryana and Chandigarh confers a specified right on the legal representatives to apply for setting aside the ex-parte decree on the ground of want of knowledge of the suit and unintentional failure to contest the suit. The only requirement for the Court in such a case is to record a satisfaction that the presence of legal representatives in the suit would have a different result on the merits of the decision. It would be useful to quote the special rule applicable in Punjab, Haryana and Chandigarh. (4) If a decree has been passed against a deceased defendant a person claiming to be his legal representatives may apply for setting aside the decree qua him and if it is proved that he was not aware of the suit or that he had no intentionally failed to make an application to bring himself on the record, the Court shall not set aside the decree upon such terms as to costs or otherwise as if thinks fit. (5) Before setting aside the decree under sub-rule (4) the Court must be satisfied prima facie that had the legal representative been on the record a different result might have been reached in the suit. (6) The provision of S.5 of the Limitation Act, 36 of 1963, shall apply to application under sub-rule (4) 21. Consequent to the above discussion, this petition succeeds and is hereby allowed. The impugned order of the revisional Court dated 13.9.1990 is hereby set aside and that of the trial Court dated 10.7.1987 is hereby restored. The trial Court is directed to proceed with the trial of Civil Suit No. 292 of 1983 after giving the notice to the petitioners and respondent no. 1. The impugned order of the revisional Court dated 13.9.1990 is hereby set aside and that of the trial Court dated 10.7.1987 is hereby restored. The trial Court is directed to proceed with the trial of Civil Suit No. 292 of 1983 after giving the notice to the petitioners and respondent no. 1. To facilitate early disposal of the suit, the counsel for the parties are directed to inform their clients to appear in the Court of Second Civil Judge, Class-I Sagar on 8.12.1997 in the suit. The parties shall beer their own costs of this petition. Petition allowed