G.K. Misra, J.
1. The legal representatives of the original plaintiff are the appellants. The suit is for ejectment of the defendants from the suit site and for permanent injunction prohibiting the defendants from entering into the suit site and from proceeding with the construction of the houses. There was an allegation in the plaint that defendants 1 to 8 are the cousins of one Jagannath Behera and defendants 9 to 11 are their sworn friends, and all the defendants at the Instigation of Jagannath Behera conspired and unlawfully encroached upon the suit site.
2. The defence was that the defendants are in possession and enjoyment of the suit land from the time of their ancestors and are using it for storing manure to the knowledge of the plaintiff. The suit land is a poromboke land and the defendants are not aware how the plaintiff got the suit land recorded in his name. The plaintiffs title and possession were denied.
3. The Courts below negatived the plaintiff's ease holding that the plaintiff had no title and possession within 12 years of the suit.
4. During the pendency of the second appeal, respondent-9 Dhanu Sahu (defendant 9) died on 15th December 1962. Application for se'ting aside abatement and for substitution were filed on 8th July 1963. The substitution was not made within 90 days. In the application it is mentioned that out of the two appellants, one was bed-ridden for 3 months from the month of March, and nothing was mentioned as to why the other appellant did not take any step for substitution within 90 days. Parties were heard at length on the question of setting aside abatement. The appellants failed to prove that they were prevented by any sufficient cause from continuing the appeal. In the circumstances, the question of setting aside abatement does not arise. The second appeal accordingly abates as against deceased respondent-9.
5. Mr. Rath, however, relies upon Order 22, Rule 4(3) and (4), C. P. C., as introduced by the Orissa High Court. Sub-rules (3) and (4) run as follows:
'(3) Where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased defendant except as provided in Sub-rule (4) below.
(4) Whenever the Court thinks fit, it may exempt the plaintiff from the necessity of substituting the legal representative of a defendant who has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before the death of such defendant.'
Mr. Rath emphasises upon the words 'whenever the Court thinks fit', and con ends that the court can exercise its discretion for holding that substitution is not necessary at any time before the case is disposed of even though no application is made for substitution and abatement lakes place automatically after the expiry of 90 days from the date of death. Under Order 22, Rule 11, in the application of Order 22 to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant, the word 'defendant' a respondent, and the word 'suit' an appeal. The Orissa amendment introducing Sub-rule (4), adopts the Calcutta amendment excluding the words 'any such defendant who has failed to file a written statement'. By this exclusion, Sub-rule (4) may not at all apply to any abatement arising in the suit itself. Sub-Rule (4) has application if the defendant has failed to appear and contest the suit at the hearing. This sub-rule may therefore apply to a suit only after the deceased defendant starts contesting at the hearing and then dies in course of the hearing before the suit concludes. It is, however, not necessary to express a final opinion on this question as the question of abatement did not arise during the pendency of the suit.
6. Though under Order 22, Rule 11, a suit means an appeal so far as may be, the word 'suit' used in Sub-rule (4) must necessarily mean in the context only suit and not appeal. In this case, deceased respondent-9 contested the suit, but he was ex parte at the first appellate stage. As he contested the suit, and the word 'suit' means 'suit' and not 'appeal' Sub-rule (4) has no application to such a case of abatement.
7. Even assuming that Sub-rule (4) would have application, the order of the Court dispensing with substitution in circumstances coming within the purview of Sub-rule (4), must be passed before actual abatement takes place. It is well settled that abatement takes place automatically and does not wait for the passing of actual order by the Court. Once abatement takes place, the discretion given to the Court to invoke the provisions of Sub-rule (4) cannot be exercised. The words '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 Order 22, Rule 4 and not under Order 22, Rule 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 Nani Gopal v. Panchanan, 59 Cal WN 304. Mr. Rath's contention is not acceptable. The Court's power to exempt under Order 22, Rule 4(4) can be exercised only before an abatement takes place and not after.
8. As the Court's discretion cannot be exercised under Order 22, Rule 4(4) and there is no sufficient cause for setting aside the abatement, the appeal abates against deceased respondent No. 9.
9. The next question for consideration is whether the entire appeal abates. From the plaint allegation, it is clear that the plaintiff characterised all the defendants as joint for leasors. On account of the abatement, the appeal would stand dismissed against deceased defendant 9 and the decree passed by the lower Appellate Court is binding on the appellants as against the legal representatives of the deceased respondent-9. If the decree is set aside in favour of the appellants so far as other respondents are concerned, it will lead to two inconsistent decrees. I have discussed the entire legal position in the case reported in Damodar Patra v. Kanchan Sahuni, ILR (1963) Cut 313: (AIR 1963 Orissa 140). As a result, the entire appeal abates.
10. In the result the Second appeal fails and is dismissed, but there will be no order as to costs of this Court.