JUDGMENT : Manish Kumar Nigam, J. 1. Heard learned counsel for the parties and perused the record. 2. This writ petition has been filed challenging the order dated 10.03.2021 passed by the appellate court rejecting the application (paper 55 ka-2) filed by the petitioner seeking amendment in the substitution application paper No. 37 Ka-2 filed for substituting the heirs of defendant/respondent no. 3 who died during pendency of the appeal. 3. Brief facts of the case are that original suit no. 89 of 1968 was filed by the petitioner for the relief that compromise petition filed in Supreme Court in Civil Appeal No. 375 of 1957 which was recorded by the court on 19.05.1958 and incorporated in a decree of the said appeal, so far as it purported to convey the property described in a schedule-IV to Shri Bhagwati declaring illegal void and not binding on the plaintiff. In the aforesaid suit one Gauri Shankar Sahi was added as defendant no. 3 who was substituted after his death by Bhuvneshwar Prasad Sahi. The said suit was dismissed by judgment and decree dated 07.05.2012. Against the judgement and decree passed in the suit, first appeal being appeal No. 30 of 2012 was filed by the plaintiff. During the pendency of the appeal Bhuvneshwar Prasad Shahi respondent no. 3 died on 26.10.2018. Petitioner/appellant filed an application for substituting the heirs of deceased defendant/respondent no. 3 being paper no. 37Ka-2. Later on petitioner/appellant filed an application Paper No. 55 Ka-2 for amendment in the substitution application praying for relieving the petitioner/appellant from necessity of substituting the legal representative of deceased defendant/respondent no. 3 in view of Sub-rule (4) of Rule 4 of Order 22 C.P.C. Application Paper No. 55 Ka-2 has been rejected by the appellate court, hence, the present petition. 4. It has been contended by learned counsel for the petitioner that Shri Gauri Shankar Sahi, defendant no. 3 never contested the suit and has not filed written statement during the pendency of the suit. After his death, Bhuvneshwar Prasad Sahi was substituted in his place who happens to be son of Gauri Shankar Sahi during the pendency of the suit. Bhuveneshwar Prasad Sahi too have not filed any written statement or contested the suit. Therefore, the petitioner/appellant prayed that petitioner appellant be exempted from substituting the heirs of deceased respondent no. 3 Bhuvneshwar Prasad Sahi. Bhuveneshwar Prasad Sahi too have not filed any written statement or contested the suit. Therefore, the petitioner/appellant prayed that petitioner appellant be exempted from substituting the heirs of deceased respondent no. 3 Bhuvneshwar Prasad Sahi. It has been further contended by learned counsel for the petitioner that no relief in the suit was claimed against defendant no. 3. 5. Shri Anshul Chowdhary, learned counsel appearing for respondent nos. 1 & 2 submitted that no error has been committed by the appellate court in rejecting the application for amendment moved by the petitioner for amending the substitution application filed for substituting the heirs of deceased defendant/respondent no. 3. It has been further submitted that once the substitution application has been filed for substituting the heirs of deceased defendant/respondent no. 3, there is no occasion for the petitioner/appellant to file an application for being relieved from substituting the heirs of deceased defendant/respondent no. 3 under Sub-rule (4) of Rule 4 of Order 22 C.P.C. It has been further submitted by learned counsel for the respondents that deceased defendant/respondent no. 3 died on 26.10.2018 and the present application, purported to be under Sub-rule (4) of Rule 4 of Order 22 C.P.C. was filed on 05.01.2021. In case, application was to be filed by the petitioner/appellant for seeking exemption under Sub-rule (4) of Rule 4 of Order 22 C.P.C., the same should have been filed within time within which the application for substitution could be filed and the same cannot be entertained after expiry of the aforesaid period. 6. Before considering the rival submissions of the learned counsel for the parties, it will be appropriate to look into the provisions of Order 22 Rule 4 C.P.C. which are quoted as under: " 4. Procedure in case of death of one of several defendants or of sole defendant. (1) ....... (2) ....... (3) ....... (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 not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (5) ......." 6. (5) ......." 6. There used to be a great deal of controversy about the effect of not bringing on record the heirs and legal representatives of the defendant who did not either file the written statement or contest the suit. As a remedial measure Calcutta, Madras, Karnataka and Orissa High Courts had inserted a new sub-rule in R.4 of O. 22 CPC 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 if it had been passed when the defendant was alive. The Joint Committee of Parliament recommended for adoption of the said rule in O. 22 R. 4 Civil P.C. The recommendations made by it were: "The Committee are, therefore, of the view that in order to avoid delay in substitution of the legal representatives of the deceased defendant and consequent delay in the disposal of the suits, similar provision may be made in the Code itself. New sub-r. (4) in R.4 of O. 22 has been inserted accordingly." 7. The background which led to the insertion of sub-r. (4) of O. 22 is based on the recommendation of the aforesaid Committee. The intention of insertion is clear from the recommendations made by the Joint Committee. This was done with a view to curtail waste of unnecessary time. Court has, therefore, to keep the intention of the Legislature in mind while interpreting sub-r. (4) of O. 22 R. 4 CPC. It is now well established that intention of legislature, including the recommendations of the Joint Select Committee, can be considered and looked into for interpreting a legislation. 8. In Rameshwar Prasad v. State of U.P. , AIR 1983 SC 383 , the view taken by the Supreme Court was that whenever a court is called upon to interpret an amended provision, it has to bear in mind the history of the provision, the mischief which the legislature attempted to remedy, the remedy provided by the amendment and the reason for providing such remedy. 9. So far as the contention raised by learned counsel appearing for respondents that power of exemption conferred by Sub-rule (4) of Rule 4 of Order 22 C.P.C. can be invoked only in those cases where the application for the said purpose has been made under the provisions of sub-rule (4) within 90 days. 9. So far as the contention raised by learned counsel appearing for respondents that power of exemption conferred by Sub-rule (4) of Rule 4 of Order 22 C.P.C. can be invoked only in those cases where the application for the said purpose has been made under the provisions of sub-rule (4) within 90 days. According to him, once a suit is abated, the court has no power under the aforesaid rule to exempt. It has been further argued that abatement of suit, is not by filing an application for abatement but abatement is automatic and on such automatic abatement, coming into existence there is noting before the court, so far as the deceased defendant is concerned, in which any order for exemption under Sub-rule (4) or another order could be possibly made. It has also been contended that this application has been filed after a lapse of about 3 years from the date of death of deceased defendant/respondent. Hence, the court below has rightly rejected the application for amendment in the substitution application seeking exemption which was in fact an application for seeking exemption under Sub-rule (4) of Rule 4 of Order 22 C.P.C. 10. In support of his submission, learned counsel for the respondents relied upon the judgment in case of Sankri Prasad Singhdeo v. Kanailal Rao , (1948) 52 Cal WN 599, Nani Gopal v. Panchanan (1955) 59 Cal WN 304, and Laxmi Charan v. Satyabadi , AIR 1964 Orrisa 39 . In all of these cases, the view taken was that the words "Whenever the Court thinks fit" in the context must mean that the court sees fit within 90 days from the date of death and before abatement takes place. 11. These authorities, no doubt support the petitioner contentions. Two courses are open to the plaintiff either to make an application for substitution or to file an application invoking the courts power of exempting from the necessity of substituting the legal heirs of the deceased defendant/respondent. If either of the two things are not done, the irresistible conclusion would be that the suit stands abated as against the deceased defendant. In the facts of the present case, an application for substituting was filed by the petitioner/appellant on 05.01.2019, for substituting the heirs of defendant/respondent no. 3 who died on 26.10.2018, which was well in time. If either of the two things are not done, the irresistible conclusion would be that the suit stands abated as against the deceased defendant. In the facts of the present case, an application for substituting was filed by the petitioner/appellant on 05.01.2019, for substituting the heirs of defendant/respondent no. 3 who died on 26.10.2018, which was well in time. After filing the substitution application, the petitioner/appellant moved the present application for exemption on 25.01.2021 by seeking amendment in the substitution application. 12. In the facts of the present case, there cannot be any abatement in the appeal as the application for substitution was already filed and by the subsequent application, petitioner/appellant has sought exemption from substituting the heirs of deceased defendant/respondent no. 3, thus, in my view, contention of the learned counsel for the respondent is of no avail. 13. Apart from the factual position in the present case, mentioned above, I am not persuaded to agree with the view taken in case of Sankri Prasad Singhdeo v. Kanailal Rao (Supra), Nani Gopal v. Panchanan (Supra) and Laxmi Charan v. Satyabadi (Supra). The intention behind the sub-r. (4) of R. 4 of O. 22 is that a plaintiff need not be asked to file an application for bringing on record the heirs of the deceased when he has not taken any interest in the suit. That intention could not be fructified if the suit is abated on the application for exemption not being made within 90 days. The expression used in sub-r. (4) is, "whenever it thinks fit". The word "whenever" means at whatever time or at what time so ever. To accept the interpretation put forward by the petitioners' learned counsel would result in ignoring that expression altogether. The power to exempt is not inhibited by the condition that the application for the said purpose must have been moved within 90 days. The exemption given by sub-r. (4) of O. 22, R. 4 relieves the plaintiff from the liability of moving a substitution application. It is a maxim of law that words of exemption are not to be construed to import any liability. The exemption granted excuses the plaintiff from the performance of duty. Accordingly, to me it appears that moving of application within 90 days is not at all necessary, as was argued by the learned counsel for respondent. 14. It is a maxim of law that words of exemption are not to be construed to import any liability. The exemption granted excuses the plaintiff from the performance of duty. Accordingly, to me it appears that moving of application within 90 days is not at all necessary, as was argued by the learned counsel for respondent. 14. Dissenting with the view taken by the Orissa and Calcutta High Courts the Karnataka High Court held in S.A Raheem v. Rajamma (AIR 1977 Kant 20) , that exemption application is not required to be filed within 90 days of death. To the same effect is the view of Gauhati and Patna High Courts in Nepal Chand Saha v. Rebati Mohan Saha (AIR 1979 Gauhati 1) and Rai Nath Sahgal v. Shiva Prasad Sinha ( AIR 1979 Pat 239 ) . In Nepal Chand Saha's case (Supra), strong reliance had been placed by the learned Judge on a decision of the Madras High Court reported in Velappan Pillai v. Parappan ( AIR 1969 Mad 309 ) . In this decision, the controversy in issue has been considered in great detail. I am in respectful agreement with the view taken by the Madras High Court. 15. A legal action on the death of a party to a suit passes into a state of suspense which itself passes into a state of abatement, if the legal representatives are not brought within time. But in a case where there is no need of moving a substitution application for bringing on record the heirs and legal representatives of a defendant who had not filed his written statement or contested the suit, the said position would not emerge. Not bringing on record his legal representatives would not result in the abatement of the suit as the law now does not contemplate the same. 16. In the present case, since the application for substitution was already filed by the petitioner/appellant within time, there was no question of appeal being abated. 17. I am of the view that the court below has erroneously rejected the application filed by the appellant and the same is liable to be set-aside. 18. 16. In the present case, since the application for substitution was already filed by the petitioner/appellant within time, there was no question of appeal being abated. 17. I am of the view that the court below has erroneously rejected the application filed by the appellant and the same is liable to be set-aside. 18. In view of the above, the order dated 10.03.2021 passed by the appellate court rejecting the application (paper 55ka-2), in Civil Appeal No. 30 of 2012, is hereby set-aside and the application (paper 55Ka-2) filed by the petitioner/appellant seeking amendment, is allowed. 19. Accordingly, the writ petition is allowed