REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5673 OF 2009

VARADARAJAN .....APPELLANT(S)

VERSUS

KANAKAVALLI & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

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’

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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

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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

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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

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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.2  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 decree-

holder 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

2  (1998) 3 SCC 148

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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.3 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 Ayyar4.

10. The Full Bench of the Punjab & Haryana High Court in a judgment

reported  as  Mohinder  Kaur  &  Anr.  v.  Piara  Singh  &  Ors.5

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

3  AIR 1965 SC 1049 4  ILR 26 MAD. 230 5  AIR 1981 P&H 130

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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

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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 Srivastava6.  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

6  (2010) 1 SCC 277

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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-à- vis 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 cross- examined  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

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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.7, 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

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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

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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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