Judgment :- K.A. Abdul Gafoor, J. The plaintiff was non suited at the lower appellant stage mainly on the reason of procedural aspects. Therefore, this Second Appeal mainly raising two substantial questions of law centered around 0.22 R.4(4) of the Code of Civil Procedure and also the non joinder of necessary parties to the suit. The suit was dismissed only on those technical grounds. 2. The 4th defendant was set ex-parte in the suit Later, the 4th defendant died on 24.8.1981 during the pendency of the said suit. Far later, on 2.12.1982, the plaintiff filed LA. No. 3745/1982 seeking an order to exempt him from impleading the legal representatives of the 4th defendant who had been set ex-parte as mentioned above, invoking the provision in R.4(4) of 0.22. That was allowed by the trial Court. The lower appellate court, when that matter was re-agitated by defendant Nos.1 and 2, found that that provision could not have been invoked by the plaintiff by the time LA. was filed, because the suit had abated as far as the 4th defendant was concerned. So the first substantial question of law arising in this case is whether exemption under the said rule could be sought for after the suit had so abated. 3. The courts below held that such a petition could not have been filed after abatement, relying on the decisions reported in Lakshmi Charan Panda v. Satyabadi Behera (AIR 1964 Orissa 39), Dhruba Bhoi and Ors. v. Brundabati Bhoiani (AIR 1973 Orissa 55 and Annapurna Delhi v. Harsundari Desai AIR 1975 Cal. 12). These decisions were rendered before the amendment to the Code of Civil Procedure effected in 1976 introducing that provision. At that time, in several States, because of the amendment effected by the respective High Courts to the Code of Civil Procedure, a provision similar to that presently contained in sub-r.(4) of R.4 of 0.22 had been introduced. It is interpreting the said provision that the said Courts in the said decisions held that the power vested with the court to exempt a plaintiff from impleading the legal representatives of a defendant under the said rule shall be exercised before abatement of the suit and cannot be exercised after abatement. It is interpreting the said provision that the said Courts in the said decisions held that the power vested with the court to exempt a plaintiff from impleading the legal representatives of a defendant under the said rule shall be exercised before abatement of the suit and cannot be exercised after abatement. The Orissa High Court held that "'Whenever the court thinks fit' in the context must mean when the court thinks fit within 90 days from the date of death and before abatement takes place. Within the period of 90 days, two courses are open to the appellants - either to file an application for substitution or to file an application praying for invoking the court's power for exempting them from the necessity of substituting the legal representatives of the deceased respondent 9 if the conditions are otherwise fulfilled. This is the reason why the sub-rule has been incorporated in 0. 22, R.4 and not under 0.22 R.9 which lays down the effect of abatement. This view has also been taken by a Division Bench of the Calcutta High Court reported in Nanl Gopal v. Panchanan, 59 Cal. WN 304. Mr. Rath's contention is not acceptable. The court's power to exempt under 0.22 R.4(4) can be exercised only before an abatement takes place and not after." Following these decisions it was again held by the Orissa High Court in. Bhoi & Ors. v. B. Bhoiani & Ors. (AIR 1973 Orissa 55) that, "an application for waiving substitution can be made only before abatement sets in that is, in case the application is made within ninety days from the date of death. In this case there was no such application and as such the benefit of that provision is not available." The Calcutta High Court, following its earlier Division Bench decision Nani Gopal Mukherjee v. Panchanan Mukerjee (1966) 59 Cal. WN 304), in Annapurna Debi v. Harsundari Desai (AIR 1975 Cal. 12) held as follows : "In this decision, a Division Bench of this Court held that where no application has been made for substitution under 0.22 R.4(1) of the Code of Civil Procedure and no order for exemption has been made under provisions of sub-r.(4) of R.4 of 0.22, the suit shall abate. The court's power to exempt under 0.22 R.4(4) can be exercised only before an abatement has taken place and cannot be exercised after abatement." 4. The court's power to exempt under 0.22 R.4(4) can be exercised only before an abatement has taken place and cannot be exercised after abatement." 4. The case on hand is one arising after the introduction of R.4(4) to O. XXII by an amendment effected comprehensively to the code of civil procedure in the year 1976. Regarding application of the newly introduced sub-rule it was provided in S.97(2)(r) of the Code of Civil Procedure (Amendment) Act 1976 that, "Notwithstanding that the provisions of this Act have come into force or the repeal under sub-s.(1) has taken effect, and without prejudice to the generality of the provisions of S.6 of the General Clauses Act 1897, XXX XXX XXX (r) the provisions of R.4 of O. XXII of the First Schedule, as substituted by S.73 of this Act before the commencement of the said S.73." This section refers to not to abatement but to "any order of abatement made." Thus, there shall be an order by the court with regard to the factum of abatement notwithstanding mere clause of 90 days after the date of death of the defendant concerned. In/?. Saghal and Ors. v. Shiva PrasadSinha and Ors. (AIR 1979 Patna 239) a Division Bench of the Patna High Court held that, "the only limitation put in giving effect to sub-r.(4) of 0.22 R.4 is that if an order of abatement has already been recorded by the judge in the case then the provision of sub-r.(4) or 0. 22, R.4 of the Civil P.C. will not be applicable." This is a post amendment case. Therefore that restriction is not at all applicable here. The words "whenever it thinks fit" occurring at the beginning of sub-r.(4) are comprehensive enough to take within its sweep any stage of the suit for exercise of the discretion vesting in the court under it till, of course, the judgment is delivered and there is no apparent reason to limit or to curtail the scope of these words. This is a post amendment case. More over in this case, admittedly there was no order of abatement recorded by the trial court as on 2.12.1982, when LA. 3745/82 was filed invoking the provision contained in 0.22 R.4(4) to seek exemption from substitution of the legal representatives of the deceased 4th defendant who remained ex-parte. This is a post amendment case. More over in this case, admittedly there was no order of abatement recorded by the trial court as on 2.12.1982, when LA. 3745/82 was filed invoking the provision contained in 0.22 R.4(4) to seek exemption from substitution of the legal representatives of the deceased 4th defendant who remained ex-parte. Analysing similar aspect, it was held by the Patna High Court that, "the Court can dispense with the substitution of the heirs under 0.22, R.4(4) even without setting aside abatement at any stage of the suit." Similar view was adopted by a Division Bench of the Madras High Court in the case reported in Janabai Ammal v. T.A.S. Palani Mudaliar (AIR 1981 Mad. 62). It had been held therein that, "We are in full agreement with the views expressed by the Division Bench of this Court in Lakshmman v. Chidambaram (ILR 58 Mad. 752): (AIR 1935 Mad. 236), by Natesan J., in Velappan v. Parappan (AIR 1969 Mad. 309) and by the other High Courts in the decisions referred to above, and accordingly we grant exemption to the appellant-plaintiff from the necessity of substituting the legal representatives of the deceased 5th respondent in his place." This exemption was granted after noting the decision in Velappan v. Parappan (AIR 1969 Mad. 309) that provisions of sub-r.(4) or R.4 of 0.22 are applicable to appeal as well as to suit and the power to exempt under the said rule can be exercised at any time before the judgment even after the abatement had taken place. The facts of the said case also revealed that incumbent died on 27.3.1977 and there was only an oral representation for exemption for substitution of his legal representatives at the time of hearing of the case which was decided on 15.2.1980. This indicates that the said oral application was far later that the 90 days for the suit to abate. 5. Added to these are the decisions to the very same effect by the Gauhati High Court inNepal Chandra v. Rebati Mohan (AIR 1979 Gauhati 1), Delhi High Court in Yog Raj v. YogeshwarRaj (AIR 1982 Delhi 62) and Mohammed Mustaqueem v. Aftab Ahmad (AIR 1983 All. 368). 6. 5. Added to these are the decisions to the very same effect by the Gauhati High Court inNepal Chandra v. Rebati Mohan (AIR 1979 Gauhati 1), Delhi High Court in Yog Raj v. YogeshwarRaj (AIR 1982 Delhi 62) and Mohammed Mustaqueem v. Aftab Ahmad (AIR 1983 All. 368). 6. Perhaps the decisions of the Orissa High Court or Calcutta High Court in Lakshmi Charan v. Satyabadi (AIR 1964 Orissa 3>9), Dhruba v. Brundabati (AIR 1913 Orissa 55) and Annapurna v. Harsundari (AIR 1975 Cal. 12) may be right in the context when there was no provision indicating the effect of sub-r.(4) of R.4 in 0.22 now brought to the statute book because of the 1976 amendment and the explicit intention as contained in S.97(2)(r) of the C.P.C. (Amendment) Act 1976. When the effect of sub-r.(4) of R.4 of 0.22 is thus explicitly made clear with the restriction applied only when the abatement order has been recorded prior to the commencement of the amendment to the C.P.C. effected in 1976, necessarily it has to be taken that now there can have no restriction to exercise the discretion vested in court under sub-r.(4) of R.4 of 0.22 to exempt a party from substituting the legal heirs of the deceased defendant who had not contested the suit, after abatement of the suit as regards him. 7. So, going by these decisions the view taken by the lower appellate court regarding the application of 0.22 R.4(4) is not correct and that taken by the trial court is in tune with the aforesaid provision. Thus, the question of lawraised centered around the said provision is answered in favour of the appellant. 8. But that alone will not save the appellant as the lower appellate court had found the suit bad for non-joinder of necessary parties. There was a contention in the Written Statement filed by defendant Nos. 1,9,13 and 14 in paragraph 9 thereof that the suit was bad for non joinder of parties as the legal representatives of the 4th defendant and of one Neelakantan Pillai, one among the assignees in Ext. A3 and one Narayanan Sadasivan, the son born to Kunjulakshmi, who got the property based on Ext. A3 sale deed had not been made parties. It was contended that they are necessary parties. A3 and one Narayanan Sadasivan, the son born to Kunjulakshmi, who got the property based on Ext. A3 sale deed had not been made parties. It was contended that they are necessary parties. Non-impleadment of legal representatives of the 4th defendant cannot stand in the way because, I have already found that the order of the trial court on I. A. 3745/82 to exempt the plaintiff from impleading them was perfectly justified. When there is such exemption, the plaintiff was not liable to implead the legal representatives of the 4th defendant and by reason of such non-impleadment the suit cannot be said to be bad for non-joinder of such parties. Neelakanta Pillai mentioned is an assignor in terms of Ext. A3 sale deed, conveying his right in the property as per Ext. A3 to the plaintiff which is described in C schedule. So, the entire right of Neelakanta Pillai had come in the hands of the plaintiff. In such circumstances, the plaintiff is not obliged to implead the said Neelakanta Pillai, his assignor or his legal representatives as the plaintiff is not claiming anything from out of their hands. The remaining person stated to be impleaded as necessary parties to the suit is one Narayanan Sadasivan, the son born to Kunhulakhmi after the date of Ext. A3 namely 30.8.1104 as according to the defendant he had acquired a right in the share of Kunhulakshmi, The said Narayanan Sadasivan is none other than the husband of the plaintiff. Of course he had a right to inherit Kunhulakshmi so far as the properties left by her on her death are concerned. So far as the defendants are concerned their interest will be protected if that non-impleadment shall not affect their shares in the property, if any. Non-impleadment of necessary party will be fatal only to the plaintiff and it cannot in any way affect the rights of the defendants. Therefore, it is made clear that non¬impleadment of the said Narayanan Sadasivan who is none other that the husband of the plaintiff shall not affect the rights if any of the defendants found by the court below and that if at all he claims later any share in the property in question that shall have a bearing only on the share if any allotted to the plaintiff. In such circumstances, the defendants need not be apprehensive of such non-impleadment of the plaintiffs husband. In such circumstances, the defendants need not be apprehensive of such non-impleadment of the plaintiffs husband. Moreover, merely because a person is not impleaded, plaintiff cannot be non-suited without giving an opportunity to implead the person so found as necessary party. In such circumstances, if the plaintiff opts for to implead her husband who will naturally have no case against his wife in this suit, such impleadment can be necessarily sought for at the lower appellate stage as well. Accordingly, non¬impleadment of the party shall also not stand in the way of entertaining the suit That question of law is also found in favour of the appellant. 9. The answers of the question of law result in setting aside the judgment of the lower appellate court which had dismissed the suit on technical reasons without going to the merits of the issues agitated. Accordingly, the lower appellate court shall follow the following course of action. i) the parties shall appear before the lower appellate court on 15.12.1999. ii) the lower appellate court shall consider the appeal on merits. iii) the lower appellate court shall at any rated is pose of the appeal before the close of the month of June, 2000. iv) It is free for the plaintiff, if she chooses so, to seek impleadment of her husband as a defendant within two weeks from the said date. Even in the absence of that also, the appeal shall be proceeded with as aforesaid. Appeal is disposed of as above. No costs.