✦ High Court of India · 07 Oct 2025

Madrasdated High Court · 2025

Case Details High Court of India · 07 Oct 2025

Court

High Court of India

Decided

07 Oct 2025

Bench

The learned

Length

3,675 words

Acts & Sections

Code of Civil Procedure

4.M/s.Lavanya And CoProprietorship Firm, Rep. By Lavanya Narayanan, Having Office At No.245/6, R.K.Mutt Road, Mylapore, Chennai-600004.5.M/s.Pyramid Saimira Theatre LtdRep. By Its Director, No.672, 2nd Floor, Temple Towers, Anna Salai, Nandanam, Chennai-600035. Honble Justice K.Swamidurai (retired), Receiver Of Ms. Aruna Theatres And Enterprises Pvt. Ltd., No.3, Pillar Road, Ashok Nagar, Chennai-600 083.6.M/s.Annai Moogambikari Flour Mills Private LimitedHonble Justice K.Swamidurai (retired), Receiver Of Ms. Aruna Theatres And Enterprises Pvt. Ltd., No.3, Pillar Road, Ashok Nagar, Chennai-600 083.7.Mr.M.KalyanasundaramUdayam Kalyana Mandapam, No.3, Pillaiyar Rd., Ashok Nagar, Ch-838.Mr.S.Balasubramaniam16a/20, Rajarathnam Street, Kilpauk, Chennai-10. (amended As Per Order Dt. 09.02.2023 In Appl.2491/19)9.Muthulakshmi FW/o. M.Kuthalingam, Polt No.1 (3/8) Pasupathy Nagar, Kothari Nagar Annexe, Ramapuram, Ch-89.10.Mrs.Indira FW/o.P.Somasundraam, No.10a/9c Karpagammal __________Page 2 of 18 https://www.mhc.tn.gov.in/judis Nagar 2nd St, Ramapuram, Ch-8911.Mr.K.Vadivel MuruganS/o.Late S.Karuppasamy Pillai, Old No.34, New No.16, Marimalaiyadikal Street, Rsak Garden Main Road, Arumbakkam, Ch-106.12.Mr.K.MuthukrishnanPlot No.9 D.No.15/7, Vivekanandar Street, Karpagavinayagar Koil Colony, Madura Alappakkam, Porur, Ch-116...Respondent(s)A No. 2723 of 2025P. ManiS/o.S.Paramasivam Pillai, No.221, Senthamizh Nagar Main Road, Ramapuram, Chennai 600 089...Applicant(s)Vs1.M/s.Aruna Theatres Enterprises Pvt LtdRep. By Its Directors Mr.K.Shanmugasundaram Having Reg. Office At No.9, Davidson Street, Chennai-1.And Havng Its Corporate Office At No.3, Pillar Road, Ashok Nagar, Ch-832.Karur Vysya Bank LimitedRep. By Its Deputy General Manager, Divisional Offce, K.V.B.Towers, (1st Floor), 568, Anna Salai, Teynampet, Chennai-18 Mr.S.Paramasivam Pillai (deceased)3.M/s.Ashoka AssociatesPartnership Firm Rep. By Its Partner, Mr.V.Manthiram, Having Off. At No.9, Davidson Street, Chennai-600001.4.M/s.Lavanya And Co__________Page 3 of 18 https://www.mhc.tn.gov.in/judis Proprietorship Firm, Rep. By Lavanya Narayanan, Having Office At No.245/6, R.K.Mutt Road, Mylapore, Chennai-600004.5.M/s.Pyramid Saimira Theatre LtdRep. By Its Director, No.672, 2nd Floor, Temple Towers, Anna Salai, Nandanam, Chennai-600035.6.M/s. Annai Mookambikai Flour Mills Pvt. Ltd.Rep. By Its Director, Mr.Muthuvel, No.9, Davidson Street, Chennai-1.7.Mr.M.KalayanasundaramLessee Of Udayam Kalyana Mandapam, No.3, Pillaiyar Rd., Ashok Nagar, Ch-838.Mr.S.Balasubramaniam16a/20, Rajarathnam Street, Kilpauk, Chennai-10. (amended As Per Order Dt. 09.02.2023 In Appl.2491/19)9.Muthulakshmi FW/o. M.Kuthalingam, Polt No.1 (3/8) Pasupathy Nagar, Kothari Nagar Annexe, Ramapuram, Ch-89.10.Mrs.IndiraW/o.P.Somasundraam, No.10a/9c Karpagammal Nagar 2nd St, Ramapuram, Ch-8911.Mr.K.Vadivel MuruganS/o.Late S.Karuppasamy Pillai, Old No.34, New No.16, Marimalaiyadikal Street, Rsak Garden Main Road, Arumbakkam, Ch-106.__________Page 4 of 18 https://www.mhc.tn.gov.in/judis

12.Mr.K.MuthukrishnanPlot No.9 D.No.15/7, Vivekanandar Street, Karpagavinayagar Koil Colony, Madura Alappakkam, Porur, Ch-116...Respondent(s)A No. 3401 of 2025PRAYER : To implead the applicant herein as proposed Defendant in the suit.A No. 2723 of 2025PRAYER : To set aside the ex parte decree and judgment dated 07/06/2024 in C.S.No.980 of 2007.For Applicant(s):Mr.M.L.RameshFor Respondent(s):M/s. C.UmashankarOrderThese Applications have been filed to implead the applicant herein as proposed Defendant in the suit and to set aside the ex-parte decree and judgment dated 07/06/2024 in C.S.No.980 of 2007.2. When these applications have been taken up for hearing on 18.09.2025, this Court has passed the following order:"These applications have been filed by the applicants, who claim to be the legal heirs of the deceased second defendant, stating that the second defendant died on 20.06.2026 and that his legal heirs __________Page 5 of 18 https://www.mhc.tn.gov.in/judis were not impleaded. It is further stated that the decree has been passed against a dead person, and hence, the ex parte decree passed against the second defendant is liable to be set aside and his legal heirs ought to be impleaded as parties to the suit.2. The learned counsel for the respondent submitted that the Court has exempted the plaintiff from filing legal heirs of the 2nd defendant subsequent to his death. He submitted that even though the Court has not recorded the death of the 2nd defendant, the benefit of exemption would arise in favour of the plaintiff in view of the judgement held in Krishnaveni Vs. Ramachandra Naidu, reported in (1998) 2 MLJ 410. Attention was drawn to paragraphs No. 15 to 20 of the above judgement.“15. Order 22 Rule 4 (4) does not say or indicate that an application under the said provision could be made only before abatement of the suit and not thereafter. If the provision of Order 22, Rule 4 (4), C.P.C. is to be read in that way, it amounts to adding such a restriction, and narrowing down the scope of the provision. The said provision was intended to give wide discretion to the Court to grant such exemption to plaintiff in appropriate case from the necessity of substituting the legal representatives of a defendant, satisfying the requirements of the said rule.16. This Court in Velappan Pillai v. Parappan Panicker and others, has expressed the view that the provisions of Order 22, Rule 4 (4) (Madras amendment) could be invoked at any time before pronouncement of judgment, notwithstanding the automatic operation of sub-rule (3). Paragraph 14 of the said Judgment reads:-"In Jag Mohan v. Ramaiah, A.I.R. 1962 Andh. Pra. 165 though it does not appear whether there was an abatement, the learned Judges observed that the rule comes into operation in cases where the plaintiff learns that death of one of the defendants took place before judgment is delivered and the Court is invited to enter judgment against that defendant also. Rule 4 must be read as a whole, having also in view R.4(1). Where abatement takes place under the rules the abatement may __________Page 6 of 18 https://www.mhc.tn.gov.in/judis be automatic. Abatement on death is specifically provided for under rules 3 and 4. Sub-rules (3) and (4) of rule 4 must be read together. Sub-rule (3) will not operate in cases where an order under sub-rule (4) is made. Statutorily the automatic operation of sub-rule (3) is taken away when an exemption is granted under sub-rule (4). This is because sub-rule (3) itself provides sub- rule (4) as its exception and full effect has to be given to the exception."17. A Division Bench of this Court in Janabai Ammal @ Gunabosshani v. T.A.S. Palani Mudaliar and others, , after referring to various decisions, in paragraph 13 had stated thus:-"Natesan, J. in Velappan v. Parappan, , taking the decision in Lakshmanan Chettiar case, ILR 58 Mad. 752 : AIR 1935 Mad. 236 as settled proposition and following the same, held as follows:-'In my view the provisions of O.22, R.4 (4), could be availed of at any time before judgment. If a person is proforma respondent, having no interest in the litigation, the rule providing for abatement cannot apply."The Karnataka High Court in Rahim v. Rajamma, , agreeing with the view expressed by Natesan, J. in Velappan v. Parappan, has ruled thus:-'If the Court, in exercise of its discretion, grants exemption to the plaintiff from the necessity to substitute the legal representatives of the concerned defendant, the Court can proceed to dispose of the suit and pronounce judgment against such defendant notwithstanding the fact that the legal representatives of such defendant have not been brought on record. When such judgment is pronounced, sub- rule (4) expressly provides that it shall have the same force and effect as if it had been pronounced before the death took place. It, therefore, follows that when a judgment is pronounced in a suit against the deceased defendant, after according necessary exemption under sub-rule (4), no atatement as such shall be deemed to have taken effect. As the judgment itself is deemed to have been pronounced during the life time of the deceased defendant, it is obvious that the abatement shall not be deemed to have taken effect. As, in law, it has to be deemed that no abatement has taken effect.Recently, in Nepal Chandra v. Rebati Mohan, A.I.R. 1979 Gauhati 1 the Gauhati High Court, agreeing with the view expressed by this Court in Lakshmanan v. Chidambaram, ILR 58 Mad. 752: AIR 1935 Mad. 236 and Velappan v. Parappan, , observed that the provisions of sub-rule (4) of R.4 of O.22 are applicable to appeal as well as to suit and the power __________Page 7 of 18 https://www.mhc.tn.gov.in/judis to exempt under the said sub-rule can be exercised at anytime before the judgment, even after the abatement has taken place."The learned Judge in that case has also pointed out that as sub- rule (4) has not specifically insisted on the filing of an application for exemption, unlike some of the other provisions in the Code of Civil Procedure making the filing of an application obligatory for obtaining any orders from the court under the concerned provisions, the contention raised in that case that since an application was not filed for exemption under sub-rule (4), the exemption should not be granted, had no force.We are in full agreement with the views expressed by the Division Bench of this Court in Lakshmanan v. Chidambaram, ILR 58 Mad. 752: AIR 1935 Mad. 236, by Natesan, J., in Velappan v. Parappan, 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 fifth respondent in his place."18. From the paragraph extracted above, it is clear that when a judgment is pronounced in a suit against a deceased defendant after according necessary exemption under sub-rule (4), no abatement as such shall be deemed to have taken effect, inasmuch as the Judgment itself is deemed to have been pronounced during the life-time of the deceased defendant. In other words the moment exemption from substitution of legal representatives of a defendant is granted under Order 22, Rule 4 (4), even if there was an abatement by operation of sub-rule (3) of Order 22, its effect is taken away. This would be the harmonious construction of sub-rule (4) which advance the cause of justice.19. Exemption can be given by the Court to the plaintiff from the necessity of substituting legal representatives of a deceased defendant subject to the satisfaction of the requirement of the said sub-rule, if the Court thinks it fit to do so, even without an application filed by the plaintiff. Filing of written application under the said sub-rule for getting exemption from substitution of legal representatives is not mandatory requirement of the said sub-rule. This view of mine gets support from the decision in Janabai Ammal @ Gunabosshani v. T.A.S. Palani Mudaliar and others, and Elisa and others v. A. Doss, . M. Srinivasan, J. (as He then __________Page 8 of 18 https://www.mhc.tn.gov.in/judis was) in the case of Elisa and others v. A. Doss, , in paragraph 3 has stated thus:-"It is seen from the rules that an application to bring the legal representatives on record shall be made within the time limited by law and if no application is made within the said period, the suit shall abate as against the deceased defendant. That is the effect of sub-rule (3). Sub-rule (4) provides an exception to sub-rule (3). Under sub-rule (4), it is open to the Court to pass an order exempting the plaintiff from the necessity of bringing on record the legal representatives of any defendant, who had failed to file a written statement or if having filed the written statement, failed to appear and contest the suit at the hearing. But, the language of sub-rule (4) is clear enough to show that the Court must pass an order exempting the plaintiff from the necessity of substituting the legal representatives. Of course, it is not necessary for the plaintiff to file a written application seeking such exemption, as the rule does not require one. Under the said rule, the Court must apply its mind and think it fit, in the facts and circumstances of the case, to grant the exemption. For granting such exemption, the defendant who died should have remained ex parte, either without filing the written statement or after filing the written statement. It is clear from the language of the said rule that the order of exemption shall be passed before a judgment in the case is pronounced. The relevant portion of the said rule reads that the Court 'may exempt the plaintiff and 'judgment may, in such case pronounced. That part of the sub-rule says that the order of exemption should precede the judgment to be pronounced in the suit. Sub-rule (5) provides for an application to set aside the abatement caused by the failure of the plaintiff to bring the legal representatives of the deceased defendant on record within the time prescribed by law. As stated already, under sub-rule (3), the suit shall abate. Sub-rule (5) provides that even in cases where the suit has abated, it is open to the plaintiff to file an application to have the abatement set aside on the grounds mentioned in the said rule. Clause (a) of sub-rule (5) provides for a situation where the plaintiff was ignorant of the death of the defendant and Clause (b) provides that where an application is filed after the expiry of the period specified therefor in the Limitation Act. S. 5 of the Limitation Act could also be invoked. Thus, Rule 4 of Order 22 is comprehensive enough to deal with a situation where the defendant died after the institution of the suit and before passing of the judgment."Paragraph 13 of the Judgment in Janabai Ammal @ Gunabosshani v. T.A.S. Palani Mudaliar and others, is already extracted above, which also supports the view that the filing of the application under Order 22 Rule 4 (4) C.P.C. is not always necessary.__________Page 9 of 18 https://www.mhc.tn.gov.in/judis

20. If exemption from substitution of legal representative of a deceased defendant can be given by the Court under the said sub-rule, at any time before pronouncement of the Judgment without even an application, there is no reason as to why such an application cannot be made even after the abatement of a suit against a defendant in a given case. The said sub-rule also does not impose any limitation or restriction in this regard, that an application can be made only before abatement of a suit takes place as against a particular defendant.“3. A comprehensive reading of the above paragraphs in the judgement and the whole of the judgement, would only convey that the Court is empowered to allow the plaintiff to file the legal representative petition even after the expiry of the prescribed time limit. By giving a liberal interpretation to Order 22 Rule 4 of CPC, the Court has held that the plaintiff is entitled to file those applications even after the suit got abated against a deceased defendant, however with an application to condone the delay or to set aside the abatement.4. That is exactly the practice now in a vogue and in all such cases where the suit got abated as against any of the deceased defendant, applications are being filed to set aside the abatement, to condone the delay and to implead the legal heirs. In certain cases exemption is also granted for not taking steps to substitute the legal heirs of the deceased defendant. That can be done even without expecting an application to be filed by the plaintiff in the special circumstance of the suit. It is within the discretion of the court. There is disagreement on the said legal position also.5. But in the case in hand, the court has not given any express exemption to the plaintiff from substituting the legal representatives __________Page 10 of 18 https://www.mhc.tn.gov.in/judis of the deceased 2nd defendant. All that can be understood from the records is that from a memo filed by the receiver who has been appointed during the pendency of the court, he has stated about the death of the 2nd defendant. So it is contended that the court had the knowledge about the death of the 2nd defendant and it did not insist to take steps by the plaintiff to implead the legal heirs of the deceased defendant ;and hence it should be presumed that the court had given exemption. 6. The death of the 2nd defendant could have been incidentally mentioned in any of the documents filed before the Court. But the court did not take cognizance of the same and it was not recorded. It makes a difference when the plaintiff himself specifically makes a mention or files a memo to get it recorded by the Court and see that the consequential amendments are carried out in the plaint. And it is open to him to claim for exemption from impleading the legal heirs in view of certain special circumstance if any. Without the adoption of the above process, now, on the face of it, the decree appears to have passed only against one of the person, as the death of that person has not been taken cognizance by the Court. It is needless to state that the decree was passed against one of the parties who is a dead person. In the absence of any records to show that the Court has exempted the plaintiff from taking steps to implead the legal heirs of the deceased 2nd defendant, it can not be presumed that such an exemption is given. 7. Now the legal heirs of the deceased 2nd defendant, have filed their application to implead themselves as parties to the suit in their capacity as legal representatives of the deceased 2nd defendant, __________Page 11 of 18 https://www.mhc.tn.gov.in/judis setting aside the ex parte decree passed against the 2nd defendant will not arise. Because, as far as the 2nd defendant is concerned, it is a decree passed against a dead person, and whatever legal consequences that would arise out of the same is available to the applicants/ legal representatives of the deceased 2nd defendant [because the plaintiff seeks to enforce the decree as against them in their capacity as the legal representative of the deceased 2nd defendant].8. Incidentally, the 4th defendant has also filed an application to set aside the ex parte decree passed against him, as he had failed to file written statement. In the event of setting aside the decree on the application so filed by the 4th defendant, the legal representatives of the 2nd defendant may have an opportunity to implead themselves as parties to the suit and then contest the suit.9. In view of the same, those applications of the applicant are kept pending until the disposal of the application filed by the 4th defendant in A.No.4604/2025. Let the matter be listed on 07.10.2025."3. On 07.10.2025, the other application in A.No.4604 of 2025 filed by the fourth defendant has been taken up and the same has been dismissed. So far as this applicant is concerned, he is not a party to the proceedings. He only claims himself as the legal heir of the deceased second defendant. __________Page 12 of 18 https://www.mhc.tn.gov.in/judis

4. In the suit, the legal heirs of the deceased second defendant has not been impleaded. It is at the risk of the plaintiff to execute the decree as against the second defendant through his legal heirs. So it is open to the applicant to raise any of the contentions about the executability of the decree as against the legal heirs who have not been impleaded as parties, during such execution proceedings. 5. With these observations, these applications are closed. 07-10-2025Index: Yes/NoSpeaking/Non-speaking orderNeutral Citation: Yes/NoGSK__________Page 13 of 18 https://www.mhc.tn.gov.in/judis A No. 3401 of 2025To1.M/s.Aruna Theatres Enterprises Pvt LtdRep. By Its Directors Mr.K.Shanmugasundaram Having Reg. Office At No.9, Davidson Street, Chennai-2.Karur Vysya Bank LimitedRep. By Its Deputy General Manager, Divisional Offce, K.V.B.Towers, (1st Floor), 568, Anna Salai, Teynampet, Chennai-18 R-2 M/s.S. Paramasivam Pillai S/o.Sri Sankara Narayana Pillai, 51, 5th Main Road, Natesan Nagar, Virgambakkam, Chennai-92.3.M/s.Ashoka AssociatesPartnership Firm Rep. By Its Partner, Mr.V.Manthiram, Having Off. At No.9, Davidson Street, Chennai-600001.4.M/s.Lavanya And CoProprietorship Firm, Rep. By Lavanya Narayanan, Having Office At No.245/6, R.K.Mutt Road, Mylapore, Chennai-600004.5.M/s.Pyramid Saimira Theatre LtdRep. By Its Director, No.672, 2nd Floor, Temple Towers, Anna Salai, Nandanam, Chennai-600035. Honble Justice K.Swamidurai__________Page 14 of 18 https://www.mhc.tn.gov.in/judis (retired), Receiver Of Ms. Aruna Theatres And Enterprises Pvt. Ltd., No.3, Pillar Road, Ashok Nagar, Chennai-600 083.6.M/s.Annai Moogambikari Flour Mills Private LimitedHonble Justice K.Swamidurai (retired), Receiver Of Ms. Aruna Theatres And Enterprises Pvt. Ltd., No.3, Pillar Road, Ashok Nagar, Chennai-600 083.7.Mr.M.KalyanasundaramUdayam Kalyana Mandapam, No.3, Pillaiyar Rd., Ashok Nagar, Ch-838.Mr.S.Balasubramaniam16a/20, Rajarathnam Street, Kilpauk, Chennai-10. (amended As Per Order Dt. 09.02.2023 In Appl.2491/19)9.Muthulakshmi FW/o. M.Kuthalingam, Polt No.1 (3/8) Pasupathy Nagar, Kothari Nagar Annexe, Ramapuram, Ch-89.10.Mrs.Indira FW/o.P.Somasundraam, No.10a/9c Karpagammal Nagar 2nd St, Ramapuram, Ch-8911.Mr.K.Vadivel MuruganS/o.Late S.Karuppasamy Pillai, Old No.34, New No.16, Marimalaiyadikal Street, Rsak Garden Main Road, Arumbakkam, Ch-106.__________Page 15 of 18 https://www.mhc.tn.gov.in/judis

12.Mr.K.MuthukrishnanPlot No.9 D.No.15/7, Vivekanandar Street, Karpagavinayagar Koil Colony, Madura Alappakkam, Porur, Ch-116.A No. 2723 of 2025To1.M/s.Aruna Theatres Enterprises Pvt LtdRep. By Its Directors Mr.K.Shanmugasundaram Having Reg. Office At No.9, Davidson Street, Chennai-1.And Havng Its Corporate Office At No.3, Pillar Road, Ashok Nagar, Ch-832.Karur Vysya Bank LimitedRep. By Its Deputy General Manager, Divisional Offce, K.V.B.Towers, (1st Floor), 568, Anna Salai, Teynampet, Chennai-18 Mr.S.Paramasivam Pillai (deceased)3.M/s.Ashoka AssociatesPartnership Firm Rep. By Its Partner, Mr.V.Manthiram, Having Off. At No.9, Davidson Street, Chennai-600001.4.M/s.Lavanya And CoProprietorship Firm, Rep. By Lavanya Narayanan, Having Office At No.245/6, R.K.Mutt Road, Mylapore, Chennai-600004.5.M/s.Pyramid Saimira Theatre LtdRep. By Its Director, No.672, 2nd Floor, Temple Towers, Anna Salai, Nandanam, Chennai-600035.__________Page 16 of 18 https://www.mhc.tn.gov.in/judis

6.M/s. Annai Mookambikai Flour Mills Pvt. Ltd.Rep. By Its Director, Mr.Muthuvel, No.9, Davidson Street, Chennai-1.7.Mr.M.KalayanasundaramLessee Of Udayam Kalyana Mandapam, No.3, Pillaiyar Rd., Ashok Nagar, Ch-838.Mr.S.Balasubramaniam16a/20, Rajarathnam Street, Kilpauk, Chennai-10. (amended As Per Order Dt. 09.02.2023 In Appl.2491/19)9.Muthulakshmi FW/o. M.Kuthalingam, Polt No.1 (3/8) Pasupathy Nagar, Kothari Nagar Annexe, Ramapuram, Ch-89.10.Mrs.IndiraW/o.P.Somasundraam, No.10a/9c Karpagammal Nagar 2nd St, Ramapuram, Ch-8911.Mr.K.Vadivel MuruganS/o.Late S.Karuppasamy Pillai, Old No.34, New No.16, Marimalaiyadikal Street, Rsak Garden Main Road, Arumbakkam, Ch-106.12.Mr.K.MuthukrishnanPlot No.9 D.No.15/7, Vivekanandar Street, Karpagavinayagar Koil Colony, Madura Alappakkam, Porur, Ch-116.DR.R.N.MANJULA J.__________Page 17 of 18 https://www.mhc.tn.gov.in/judis GSKA NOs. 3401 OF 2025 & A NO. 2723 OF 2025CS NO. 980 OF 200707-10-2025__________Page 18 of 18

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