The Full Bench of the Punjab & Haryana High Court in a judgment
reported as Mohinder Kaur & Anr. v. Piara Singh & Ors.AIR 1981 P&H 130
examined the question as to whether a decision under Order XXII
Rule 5 of the Code would act as res judicata in a subsequent suit
between the same parties or persons claiming through them. The
Court held as under:
“5. So far as the first argument of Mr. Bindra, noticed
above is concerned, we find that in addition to the
judgments of the Lahore High Court and of this Court,
referred to in the earlier part of this judgment, he is
supported by a string of judgments of other High Courts
as well wherein it has repeatedly been held on varied
reasons, that, a decision under Order 22, Rule 5, Civil
Procedure Code, would not operate as res judicata in a
subsequent suit between the same parties or persons
claiming through them wherein the question of
succession or heirship to the deceased party in the
earlier proceedings is directly raised. Some of these
reasons are as follows:—
(i) Such a decision is not on an issue arising in the suit
itself, but is really a matter collateral to the suit and has
to be decided before the suit itself can be proceeded
with. The decision does not lead to the determination of
any issue in the suit.
(ii) The legal representative is appointed for orderly
conduct of the suit only. Such a decision could not take
away, for all times to come, the rights of a rightful heir
of the deceased in all matters.
(iii) The decision is the result of a summary enquiry
against which no appeal has been provided for.
(iv) The concepts of legal representative and heirship of
a deceased party are entirely different. In order to
constitute one as a legal representative, it is
unnecessary that he should have a beneficial interest in
the estate. The executors and administrators are legal
representatives though they may have no beneficial
interest. Trespasser into the property of the deceased
claiming title in himself independently of the deceased
will not be a legal representative. On the other hand the
heirs on whom beneficial interest devolved under the
law whether statute or other, governing the parties will
be legal representatives.
xx xx xx
9. We are, therefore, of the opinion that in essence a
decision under Order 22, Rule 5, Civil Procedure Code, is
only directed to answers an orderly conduct of the
proceedings with a view to avoid the delay in the final
decision of the suit till the persons claiming to be the
representatives of the deceased party get the question
of succession settled through a different suit and such a
decision does not put an end to the litigation in that
regard. It also does not determine any of the issues in
controversy in the suit. Besides this it is obvious that
such a proceeding is of a very summary nature against
the result of which no appeal is provided for. The grant
of an opportunity to lead some sort of evidence in
support of the claim of being a legal representative of
the deceased party would not in any manner change
the nature of the proceedings. In the instant case the
brevity of the order (reproduced above) with which the
report submitted by the trial Court after enquiry into the
matter was accepted, is a clear pointer to the fact that
the proceedings resorted to were treated to be of a very
summary nature. It is thus manifest that the Civil
Procedure Code proceeds upon the view of not
imparting any finality to the determination of the
question of succession or heirship of the deceased
party.”
11. The judgment in Mohinder Kaur was referred to and approved by
this Court in a judgment reported as Dashrath Rao Kate v. Brij
Mohan Srivastava (2010) 1 SCC 277.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5673 OF 2009
VARADARAJAN Vs KANAKAVALLI
HEMANT GUPTA, J.
Dated:JANUARY 22, 2020.
1. The order dated 27th November, 2007 passed by the High Court of
Judicature at Madras in revision petition under Section 115 of the
Code of Civil Procedure, 19081 is the subject matter of challenge in
the present appeal.
2. The revision petition is directed against an order passed by the
Executing Court on 19th September, 2005 wherein the possession
of the suit property in pursuance of a decree passed in favour of
one Umadevi was ordered to be given to the present appellant as
the legal representative of Umadevi.
3. Umadevi filed a suit for partition and separate possession in
1 for short, ‘Code’
respect of the suit property as the successor-in-interest of one
Manicka Naicker, her husband. Prior to Umadevi, he had earlier
married one Valliammal and had a child one Munisamy Naicker.
Manicka Naicker died in the year 1971. Umadevi filed a suit for
partition claiming half share in the suit property against Manicka
Naicker. This suit was decreed on 7th April, 1989 and such decree
had attained finality. It was in 1999 that Umadevi sought execution
of the decree passed but she died on 22nd July, 1999. The
appellant who is the son of Umadevi’s younger sister filed an
application to execute the decree as her legal representative on
the basis of a Will dated 16th July, 1999 (Ex.P/1). The said
application was allowed by the Executing Court on 29th March,
2004.
4. The appellant filed an application under Order XXI Rule 35 of the
Code for eviction of the respondent and to deliver vacant
possession of the premises. In response to such petition, the
respondent asserted that the Will is forged and that the son of a
sister is not a legal heir as per Section 15 of the Hindu Succession
Act, 1956. The learned Executing Court decided the application on
19th September, 2005. It found that the Will was attested by PW-2
Ayeeyappa who had signed it as one of the attesting witnesses and
PW-3 Mohan had scribed the Will. The respondent examined
Senthilnathan as RW-1 and Krishnan as RW-2. The learned
Executing Court held that the appellant as legal representative of
the deceased Umadevi is entitled to execute the decree. The
Executing Court held as under:
“11. …Further in OS No. 30 of 1982 a judgment and
decree was granted in favour of Umadevi on 7.4.1989.
Either the deceased Munusamy or his son the said
Senthilnathan had not filed any appeal as against the
decree. But the said Umadevi had filed an Execution
petition duly signed by her. Further, the said Umadevi,
before her death, i.e. 6 days earlier to her death, she
had executed the Ex.P-1 Will. This court finds that her
actions in filing the execution petition and the Will are
accepted to be correct, even by the respondents.
Further this court finds that since the said Munusamy,
who is the son of the first wife of her husband, did not
give her food, cloth and shelter and did not take care on
her, the deceased Umadevi had gone to the house of
her younger sister and stayed along with her and since
her health condition got deteriorated, she had executed
a Will in favour of the son of her younger sister namely
Varadarajan and these facts are found to be true.”
5. The said order was challenged by the judgment debtor by way of a
revision under Section 115 of the Code. It may be noticed that no
one else other than the appellant had come forward to continue the
execution of the decree as the legal representative of Umadevi.
6. The High Court held that the Executing Court is the competent and
proper Court to determine the validity of the Will as well as the
legatee under a Will can be construed as a legal representative and
come on record to seek execution of the decree. However, the
High Court found that the execution of the Will was surrounded by
suspicious circumstances. It may be noticed that the High Court in
revisional jurisdiction has interfered with the findings of fact
recorded by the Executing Court in respect of execution of Will
arrived at after considering the evidence led by the parties. The
High Court found that as per the appellant, the decree holder,
Umadevi, was driven out of her house by her step son Munisamy
Naicker and was staying with her sister for nearly 20 years but the
execution of the Will at the last moment is a suspicious
circumstance. The High Court returned the following findings:
“19. In view of all the above facts which were
established by way of evidence, this Court is of the view
that the propounder on whom the allegation casts upon
to dispel the suspicious circumstances surrounded the
execution of the will. Further, the Court below has not
given satisfactory reasons while coming to the
conclusion that the will was proved. In the absence of
satisfactory evidence, I am unable to ascertain as to
whether the will was executed by the testatrix.
Therefore, when once it is held that the very execution
of the will has not been proved and it is not genuine,
consequently, the legatee under the said will cannot
become a legal representative to come on record in
order to maintain the execution petition in the place of
the decree holder, i.e. the testatrix.”
7. We find that the order of the High Court is not sustainable in law.
The appellant claims to be the legal representative of Umadevi on
the basis of the Will executed by her. He has produced an attesting
witness and the scribe of the Will. The witnesses have deposed the
execution of the Will by Umadevi in favour of the appellant who is
the son of her sister. No one else has come forward to seek
execution of decree as the legal representative of the deceased
decree holder. It is Umadevi who has filed the execution petition
but after her death, the appellant has filed an application to
continue with the execution. In the absence of any rival claimant
claiming to be the legal representative of the deceased decree
holder, the High Court was not justified in setting aside the order of
the Executing Court, when in terms of Order XXII Rule 5 of the
Code, the jurisdiction to determine who is a legal heir is summary
in nature.
8. We may state that Order XXII of the Code is applicable to the
pending proceedings in a suit. But the conflicting claims of legal
representatives can be decided in execution proceedings in view of
the principles of Rule 5 of Order XXII. This Court in a judgment
reported as V. Uthirapathi v. Ashrab & Ors. (1998) 3 SCC 148 held that the
normal principle arising in a suit — before the decree is passed —
that the legal representatives are to be brought on record within a
particular period is not applicable to cases of death of the decreeholder
or the judgment-debtor in execution proceedings. This Court
held as under:-
“11. Order 22 Rule 12 of the Code of Civil Procedure
reads as follows:
“Order 22 Rule 12: Application of order to
proceedings.—Nothing in Rules 3, 4 and 8 shall
apply to proceedings in execution of a decree or
order.”
12. In other words, the normal principle arising in a suit
— before the decree is passed — that the legal
representatives are to be brought on record within a
particular period and if not, the suit could abate, — is
not applicable to cases of death of the decree-holder or
the judgment-debtor in execution proceedings.
13. In Venkatachalam Chetti v. Ramaswami Servai [ILR
(1932) 55 Mad 352 : AIR 1932 Mad 73 (FB)] a Full Bench
of the Madras High Court has held that this rule enacts
that the penalty of abatement shall not attach to
execution proceedings. Mulla's Commentary on
CPC [(Vol. 3) p. 2085 (15th Edn., 1997)] refers to a large
number of judgments of the High Courts and says:
“Rule 12 engrafts an exemption which provides
that where a party to an execution proceedings
dies during its pendency, provisions as to
abatement do not apply. The Rule is, therefore,
for the benefit of the decree-holder, for his heirs
need not take steps for substitution under Rule
2 but may apply immediately or at any time
while the proceeding is pending, to carry on the
proceeding or they may file a fresh
execution application.”
(emphasis supplied)
14. In our opinion, the above statement of law
in Mulla's Commentary on CPC, correctly represents the
legal position relating to the procedure to be adopted
by the parties in execution proceedings and as to the
powers of the civil court.”
9. The legal representatives are impleaded for the purpose of a suit
alone as held by this Court in Daya Ram & Ors. v. Shyam
Sundari & Ors. AIR 1965 SC 1049 wherein it was held that impleaded legal
representatives sufficiently represent the estate of the deceased
and the decision obtained with them on record will bind not merely
those impleaded but the entire estate, including those not brought
on record. This Court approved the judgment of the Madras High
Court in Kadir v. Muthukrishna Ayyar ILR 26 MAD. 230
10. The Full Bench of the Punjab & Haryana High Court in a judgment
reported as Mohinder Kaur & Anr. v. Piara Singh & Ors.AIR 1981 P&H 130
examined the question as to whether a decision under Order XXII
Rule 5 of the Code would act as res judicata in a subsequent suit
between the same parties or persons claiming through them. The
Court held as under:
“5. So far as the first argument of Mr. Bindra, noticed
above is concerned, we find that in addition to the
judgments of the Lahore High Court and of this Court,
referred to in the earlier part of this judgment, he is
supported by a string of judgments of other High Courts
as well wherein it has repeatedly been held on varied
reasons, that, a decision under Order 22, Rule 5, Civil
Procedure Code, would not operate as res judicata in a
subsequent suit between the same parties or persons
claiming through them wherein the question of
succession or heirship to the deceased party in the
earlier proceedings is directly raised. Some of these
reasons are as follows:—
(i) Such a decision is not on an issue arising in the suit
itself, but is really a matter collateral to the suit and has
to be decided before the suit itself can be proceeded
with. The decision does not lead to the determination of
any issue in the suit.
(ii) The legal representative is appointed for orderly
conduct of the suit only. Such a decision could not take
away, for all times to come, the rights of a rightful heir
of the deceased in all matters.
(iii) The decision is the result of a summary enquiry
against which no appeal has been provided for.
(iv) The concepts of legal representative and heirship of
a deceased party are entirely different. In order to
constitute one as a legal representative, it is
unnecessary that he should have a beneficial interest in
the estate. The executors and administrators are legal
representatives though they may have no beneficial
interest. Trespasser into the property of the deceased
claiming title in himself independently of the deceased
will not be a legal representative. On the other hand the
heirs on whom beneficial interest devolved under the
law whether statute or other, governing the parties will
be legal representatives.
xx xx xx
9. We are, therefore, of the opinion that in essence a
decision under Order 22, Rule 5, Civil Procedure Code, is
only directed to answers an orderly conduct of the
proceedings with a view to avoid the delay in the final
decision of the suit till the persons claiming to be the
representatives of the deceased party get the question
of succession settled through a different suit and such a
decision does not put an end to the litigation in that
regard. It also does not determine any of the issues in
controversy in the suit. Besides this it is obvious that
such a proceeding is of a very summary nature against
the result of which no appeal is provided for. The grant
of an opportunity to lead some sort of evidence in
support of the claim of being a legal representative of
the deceased party would not in any manner change
the nature of the proceedings. In the instant case the
brevity of the order (reproduced above) with which the
report submitted by the trial Court after enquiry into the
matter was accepted, is a clear pointer to the fact that
the proceedings resorted to were treated to be of a very
summary nature. It is thus manifest that the Civil
Procedure Code proceeds upon the view of not
imparting any finality to the determination of the
question of succession or heirship of the deceased
party.”
11. The judgment in Mohinder Kaur was referred to and approved by
this Court in a judgment reported as Dashrath Rao Kate v. Brij
Mohan Srivastava (2010) 1 SCC 277. In the said case, the High Court came to the
conclusion that since the inquiry under Order XXII Rule 5 of the
Code was of a summary nature, it was limited only to the
determination of the right of the appellant therein to be impleaded
as the legal representative. This Court in the said case held as
under:
“21. As a legal position, it cannot be disputed that
normally, an enquiry under Order 22 Rule 5 CPC is of a
summary nature and findings therein cannot amount to
res judicata, however, that legal position is true only in
respect of those parties, who set up a rival claim
against the legatee. For example, here, there were two
other persons, they being Ramesh and Arun Kate, who
were joined in the civil revision as the legal
representatives of Sukhiabai. The finding on the will in
the order dated 9-9-1997 passed by the trial court could
not become final as against them or for that matter,
anybody else, claiming a rival title to the property vis-àvis
the appellant herein, and therefore, to that extent
the observations of the High Court are correct.
However, it could not be expected that when the
question regarding the will was gone into in a detailed
enquiry, where the evidence was recorded not only of
the appellant, but also of the attesting witness of the
will and where these witnesses were thoroughly crossexamined
and where the defendant also examined
himself and tried to prove that the will was a false
document and it was held that he had utterly failed in
proving that the document was false, particularly
because the document was fully proved by the
appellant and his attesting witness, it would be futile to
expect the witness to lead that evidence again in the
main suit.
xx xx xx
25. Dr. Kailash Chand, learned counsel appearing for
the respondent, also relied on ruling in Vijayalakshmi
Jayaram v. M.R. Parasuram [AIR 1995 AP 351] . It is
correctly held by the Andhra Pradesh High Court that
Order 22 Rule 5 is only for the purpose of bringing legal
representatives on record for conducting of proceedings
in which they are to be brought on record and it does
not operate as res judicata. However, the High Court
further correctly reiterated the legal position that the
inter se dispute between the rival legal representatives
has to be independently tried and decided in separate
proceedings. Here, there was no question of any rivalry
between the legal representatives or anybody claiming
any rival title against the appellant-plaintiff. Therefore,
there was no question of the appellant-plaintiff proving
the will all over again in the same suit.
26. The other judgment relied upon is the Full Bench
judgment of the Punjab and Haryana High Court
in Mohinder Kaur v. Piara Singh [AIR 1931 P&H 130] .
The same view was reiterated. As we have already
pointed out, there is no question of finding fault with
the view expressed. However, in the peculiar facts and
circumstances of this case, there will be no question of
non-suiting the appellant-plaintiff, particularly because
in the same suit, there would be no question of
repeating the evidence, particularly when he had
asserted that he had become owner on the basis of the
will (Ext. P-1).”
12. In another judgment reported as Jaladi Suguna (Deceased)
through LRs. v. Satya Sai Central Trust & Ors. (2008) 8 SCC 521, this Court held
that the determination as to who is the legal representative under
Order XXII Rule 5 of the Code is for the limited purpose of
representation of the estate of the deceased and for adjudication of
that case. This Court held as under:
“15. Filing an application to bring the legal
representatives on record, does not amount to bringing
the legal representatives on record. When an LR
application is filed, the court should consider it and
decide whether the persons named therein as the legal
representatives, should be brought on record to
represent the estate of the deceased. Until such
decision by the court, the persons claiming to be the
legal representatives have no right to represent the
estate of the deceased, nor prosecute or defend the
case. If there is a dispute as to who is the legal
representative, a decision should be rendered on such
dispute. Only when the question of legal representative
is determined by the court and such legal
representative is brought on record, can it be said that
the estate of the deceased is represented. The
determination as to who is the legal representative
under Order 22 Rule 5 will of course be for the limited
purpose of representation of the estate of the
deceased, for adjudication of that case. Such
determination for such limited purpose will not confer
on the person held to be the legal representative, any
right to the property which is the subject-matter of the
suit, vis-à-vis other rival claimants to the estate of the
deceased.”
(emphasis supplied)
7 (2008) 8 SCC 521
13. In another judgment reported as Suresh Kumar Bansal v.
Krishna Bansal & Anr.8, this Court held as under:
“20. It is now well settled that determination of the
question as to who is the legal representative of the
deceased plaintiff or defendant under Order 22 Rule 5
of the Code of Civil Procedure is only for the purpose of
bringing legal representatives on record for the
conducting of those legal proceedings only and does
not operate as res judicata and the inter se dispute
between the rival legal representatives has to be
independently tried and decided in probate
proceedings. If this is allowed to be carried on for a
decision of an eviction suit or other allied suits, the suits
would be delayed, by which only the tenants will be
benefited.”
14. In view of the aforesaid judgments, we find that the appellant is the
sole claimant to the estate of the deceased on the basis of Will.
The Executing Court has found that the appellant is the legal
representative of the deceased competent to execute the decree.
In view of the said fact, the appellant as the legal representative is
entitled to execute the decree and to take it to its logical end.
15. In addition to the nature of proceedings to implead the legal
representative to execute the decree, we find that none of the tests
laid down in Section 115 of the Code were satisfied by the High
Court so as to set aside the order passed by the Executing Court.
The High Court in exercise of revision jurisdiction has interfered
with the order passed by the Executing Court as if it was acting as
the first court of appeal. An order passed by a subordinate court
can be interfered with only if it exercises its jurisdiction, not vested
in it by law or has failed to exercise its jurisdiction so vested or has
8 (2010) 2 SCC 162
11
acted in exercise of jurisdiction illegally or with material irregularity.
The mere fact that the High Court had a different view on the same
facts would not confer jurisdiction to interfere with an order passed
by the Executing Court. Consequently, the order passed by the
High Court is set aside and that of the Executing Court is restored.
The appeal is allowed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
JANUARY 22, 2020.
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