VARADARAJAN versus KANAKAVALLI & ORS. on 22 January 2020

1. The order dated 27[th] November, 2007 passed by the High Courtof Judicature at Madras in revision petition under Section 115 of theCode of Civil Procedure, 1908[1] is the subject matter of challenge in thepresent appeal.

2. The revision petition is directed against an order passed by theExecuting Court on 19[th] September, 2005 wherein the possession of thesuit property in pursuance of a decree passed in favour of one Umadeviwas ordered to be given to the present appellant as the legal representativeof Umadevi.

3. Umadevi filed a suit for partition and separate possession inrespect of the suit property as the successor-in-interest of one ManickaNaicker, her husband. Prior to Umadevi, he had earlier married oneValliammal and had a child one Munisamy Naicker. Manicka Naickerdied in the year 1971. Umadevi filed a suit for partition claiming halfshare in the suit property against Manicka Naicker. This suit wasdecreed on 7[th] April, 1989 and such decree had attained finality. It wasin 1999 that Umadevi sought execution of the decree passed but shedied on 22[nd] July, 1999. The appellant who is the son of Umadevi’syounger sister filed an application to execute the decree as her legalrepresentative on the basis of a Will dated 16[th] July, 1999 (Ex.P/1). Thesaid application was allowed by the Executing Court on 29[th] March,2004.

4. The appellant filed an application under Order XXI Rule 35 ofthe Code for eviction of the respondent and to deliver vacant possession 1 for short, ‘Code’

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Aof the premises. In response to such petition, the respondent assertedthat the Will is forged and that the son of a sister is not a legal heir as perSection 15 of the Hindu Succession Act, 1956. The learned ExecutingCourt decided the application on 19[th] September, 2005. It found that theWill was attested by PW-2 Ayeeyappa who had signed it as one of theattesting witnesses and PW-3 Mohan had scribed the Will. The respondentBexamined Senthilnathan as RW-1 and Krishnan as RW-2. The learnedExecuting Court held that the appellant as legal representative of thedeceased Umadevi is entitled to execute the decree. The ExecutingCourt held as under:

“11. …Further in OS No. 30 of 1982 a judgment and decree wasCgranted in favour of Umadevi on 7.4.1989. Either the deceasedMunusamy or his son the said Senthilnathan had not filed anyappeal as against the decree. But the said Umadevi had filed anExecution petition duly signed by her. Further, the said Umadevi,before her death, i.e. 6 days earlier to her death, she had executedDthe Ex.P-1 Will. This court finds that her actions in filing theexecution petition and the Will are accepted to be correct, evenby the respondents. Further this court finds that since the saidMunusamy, who is the son of the first wife of her husband, did notgive her food, cloth and shelter and did not take care on her, thedeceased Umadevi had gone to the house of her younger sisterEand stayed along with her and since her health condition gotdeteriorated, she had executed a Will in favour of the son of heryounger sister namely Varadarajan and these facts are found tobe true.”

5. The said order was challenged by the judgment debtor by wayFof a revision under Section 115 of the Code. It may be noticed that noone else other than the appellant had come forward to continue theexecution of the decree as the legal representative of Umadevi.

6. The High Court held that the Executing Court is the competentand proper Court to determine the validity of the Will as well as theGlegatee under a Will can be construed as a legal representative andcome on record to seek execution of the decree. However, the HighCourt found that the execution of the Will was surrounded by suspiciouscircumstances. It may be noticed that the High Court in revisionaljurisdiction has interfered with the findings of fact recorded by the H

Executing Court in respect of execution of Will arrived at after consideringthe evidence led by the parties. The High Court found that as per theappellant, the decree holder, Umadevi, was driven out of her house byher step son Munisamy Naicker and was staying with her sister fornearly 20 years but the execution of the Will at the last moment is asuspicious circumstance. The High Court returned the following findings:

“19. In view of all the above facts which were established byway of evidence, this Court is of the view that the propounder onwhom the allegation casts upon to dispel the suspiciouscircumstances surrounded the execution of the will. Further, theCourt below has not given satisfactory reasons while coming tothe conclusion that the will was proved. In the absence ofsatisfactory evidence, I am unable to ascertain as to whether thewill was executed by the testatrix. Therefore, when once it isheld that the very execution of the will has not been proved and itis not genuine, consequently, the legatee under the said will cannotbecome a legal representative to come on record in order tomaintain 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 inlaw. The appellant claims to be the legal representative of Umadevi onthe basis of the Will executed by her. He has produced an attestingwitness and the scribe of the Will. The witnesses have deposed theexecution of the Will by Umadevi in favour of the appellant who is theson of her sister. No one else has come forward to seek execution ofdecree as the legal representative of the deceased decree holder. It isUmadevi who has filed the execution petition but after her death, theappellant has filed an application to continue with the execution. In theabsence of any rival claimant claiming to be the legal representative ofthe deceased decree holder, the High Court was not justified in settingaside the order of the Executing Court, when in terms of Order XXIIRule 5 of the Code, the jurisdiction to determine who is a legal heir issummary in nature.

8. We may state that Order XXII of the Code is applicable to thepending proceedings in a suit. But the conflicting claims of legalrepresentatives can be decided in execution proceedings in view of theprinciples of Rule 5 of Order XXII. This Court in a judgment reported as AB

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AV. Uthirapathi v. Ashrab & Ors.[2] held that the normal principle arisingin a suit — before the decree is passed — that the legal representativesare to be brought on record within a particular period is not applicable tocases of death of the decree-holder or the judgment-debtor in executionproceedings. This Court held as under:- “11. Order 22 Rule 12 of the Code of Civil Procedure reads asfollows:

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“Order 22 Rule 12: Application of order to proceedings.—Nothing in Rules 3, 4 and 8 shall apply to proceedings inexecution of a decree or order.”

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12. In other words, the normal principle arising in a suit — beforethe decree is passed — that the legal representatives are to bebrought on record within a particular period and if not, the suitcould abate, — is not applicable to cases of death of the decree-holder or the judgment-debtor in execution proceedings.

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13. In Venkatachalam Chetti v. Ramaswami Servai [ILR (1932)55 Mad 352 : AIR 1932 Mad 73 (FB)] a Full Bench of the MadrasHigh Court has held that this rule enacts that the penalty ofabatement shall not attach to execution proceedings. Mulla’sCommentary on CPC [(Vol. 3) p. 2085 (15th Edn., 1997)] refersto a large number of judgments of the High Courts and says:

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“Rule 12 engrafts an exemption which provides that where aparty 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 takesteps for substitution under Rule 2 but may apply immediatelyFor at any time while the proceeding is pending, to carry on theproceeding or they may file a fresh execution application.”

(emphasis supplied)

14. In our opinion, the above statement of law in Mulla’sGCommentary on CPC, correctly represents the legal positionrelating to the procedure to be adopted by the parties in executionproceedings and as to the powers of the civil court.”

9. The legal representatives are impleaded for the purpose of asuit alone as held by this Court in Daya Ram & Ors. v. Shyam Sundari& Ors.[3] wherein it was held that impleaded legal representativessufficiently represent the estate of the deceased and the decision obtainedwith them on record will bind not merely those impleaded but the entireestate, including those not brought on record. This Court approved thejudgment of the Madras High Court in Kadir v. Muthukrishna Ayyar[4].

10. The Full Bench of the Punjab & Haryana High Court in ajudgment reported as Mohinder Kaur & Anr. v. Piara Singh & Ors.[5]examined the question as to whether a decision under Order XXII Rule5 of the Code would act as res judicata in a subsequent suit betweenthe same parties or persons claiming through them. The Court held asunder:

“5. So far as the first argument of Mr. Bindra, noticed above isconcerned, we find that in addition to the judgments of the LahoreHigh Court and of this Court, referred to in the earlier part of thisjudgment, he is supported by a string of judgments of other HighCourts as well wherein it has repeatedly been held on variedreasons, that, a decision under Order 22, Rule 5, Civil ProcedureCode, would not operate as res judicata in a subsequent suitbetween the same parties or persons claiming through themwherein the question of succession or heirship to the deceasedparty in the earlier proceedings is directly raised. Some of thesereasons are as follows:—

(i) Such a decision is not on an issue arising in the suit itself, but isreally a matter collateral to the suit and has to be decided beforethe suit itself can be proceeded with. The decision does not leadto the determination of any issue in the suit.

(ii) The legal representative is appointed for orderly conduct ofthe suit only. Such a decision could not take away, for all times tocome, the rights of a rightful heir of the deceased in all matters.

(iii) The decision is the result of a summary enquiry against whichno appeal has been provided for.

3 AIR 1965 SC 1049

4 ILR 26 MAD. 230

5 AIR 1981 P&H 130

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(iv) The concepts of legal representative and heirship of a deceasedparty are entirely different. In order to constitute one as a legalrepresentative, it is unnecessary that he should have a beneficialinterest in the estate. The executors and administrators are legalrepresentatives though they may have no beneficial interest.Trespasser into the property of the deceased claiming title in himselfindependently of the deceased will not be a legal representative.On the other hand the heirs on whom beneficial interest devolvedunder the law whether statute or other, governing the parties willbe legal representatives.

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9. We are, therefore, of the opinion that in essence a decisionunder Order 22, Rule 5, Civil Procedure Code, is only directed toanswers an orderly conduct of the proceedings with a view toavoid the delay in the final decision of the suit till the personsclaiming to be the representatives of the deceased party get thequestion of succession settled through a different suit and such adecision does not put an end to the litigation in that regard. It alsodoes not determine any of the issues in controversy in the suit.Besides this it is obvious that such a proceeding is of a verysummary nature against the result of which no appeal is providedfor. The grant of an opportunity to lead some sort of evidence insupport of the claim of being a legal representative of the deceasedparty would not in any manner change the nature of theproceedings. In the instant case the brevity of the order(reproduced above) with which the report submitted by the trialCourt after enquiry into the matter was accepted, is a clear pointerto the fact that the proceedings resorted to were treated to be ofa very summary nature. It is thus manifest that the Civil ProcedureCode proceeds upon the view of not imparting any finality to thedetermination of the question of succession or heirship of thedeceased party.”

11. The judgment in Mohinder Kaur was referred to and approvedby this Court in a judgment reported as Dashrath Rao Kate v. BrijMohan Srivastava[6]. In the said case, the High Court came to theconclusion that since the inquiry under Order XXII Rule 5 of the Code H6 (2010) 1 SCC 277

was of a summary nature, it was limited only to the determination of theright 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, anenquiry under Order 22 Rule 5 CPC is of a summary nature andfindings therein cannot amount to res judicata, however, that legalposition is true only in respect of those parties, who set up a rivalclaim against the legatee. For example, here, there were two otherpersons, they being Ramesh and Arun Kate, who were joined inthe civil revision as the legal representatives of Sukhiabai. Thefinding on the will in the order dated 9-9-1997 passed by the trialcourt could not become final as against them or for that matter,anybody else, claiming a rival title to the property vis-à-vis theappellant herein, and therefore, to that extent the observations ofthe High Court are correct. However, it could not be expectedthat when the question regarding the will was gone into in a detailedenquiry, where the evidence was recorded not only of the appellant,but also of the attesting witness of the will and where thesewitnesses were thoroughly cross-examined and where thedefendant also examined himself and tried to prove that the willwas a false document and it was held that he had utterly failed inproving that the document was false, particularly because thedocument was fully proved by the appellant and his attestingwitness, it would be futile to expect the witness to lead thatevidence again in the main suit.

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25. Dr. Kailash Chand, learned counsel appearing for therespondent, also relied on ruling in Vijayalakshmi Jayaram v. M.R.Parasuram [AIR 1995 AP 351] . It is correctly held by the AndhraPradesh High Court that Order 22 Rule 5 is only for the purposeof bringing legal representatives on record for conducting ofproceedings in which they are to be brought on record and it doesnot operate as res judicata. However, the High Court furthercorrectly reiterated the legal position that the inter se disputebetween the rival legal representatives has to be independentlytried and decided in separate proceedings. Here, there was no AB

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Aquestion of any rivalry between the legal representatives oranybody claiming any rival title against the appellant-plaintiff.Therefore, there was no question of the appellant-plaintiff provingthe will all over again in the same suit.

26. The other judgment relied upon is the Full Bench judgment ofBthe Punjab and Haryana High Court in Mohinder Kaur v. PiaraSingh [AIR 1931 P&H 130] . The same view was reiterated. Aswe have already pointed out, there is no question of finding faultwith the view expressed. However, in the peculiar facts andcircumstances of this case, there will be no question of non-suitingthe appellant-plaintiff, particularly because in the same suit, thereCwould be no question of repeating the evidence, particularly whenhe 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 thatDthe determination as to who is the legal representative under Order XXIIRule 5 of the Code is for the limited purpose of representation of theestate of the deceased and for adjudication of that case. This Courtheld as under:

“15. Filing an application to bring the legal representatives onErecord, does not amount to bringing the legal representatives onrecord. When an LR application is filed, the court should considerit and decide whether the persons named therein as the legalrepresentatives, should be brought on record to represent the estateof the deceased. Until such decision by the court, the personsFclaiming to be the legal representatives have no right to representthe estate of the deceased, nor prosecute or defend the case. Ifthere is a dispute as to who is the legal representative, a decisionshould be rendered on such dispute. Only when the question oflegal representative is determined by the court and such legalrepresentative is brought on record, can it be said that the estateGof the deceased is represented. The determination as to who isthe legal representative under Order 22 Rule 5 will of course befor the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination forsuch limited purpose will not confer on the person held to be the-legal representative, any right to the property which is the subjectmatter of the suit, vis-à-vis other rival claimants to the estate ofthe deceased.”

(emphasis supplied)

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 towho is the legal representative of the deceased plaintiff ordefendant under Order 22 Rule 5 of the Code of Civil Procedureis only for the purpose of bringing legal representatives on recordfor the conducting of those legal proceedings only and does notoperate as res judicata and the inter se dispute between the rivallegal representatives has to be independently tried and decided inprobate proceedings. If this is allowed to be carried on for adecision of an eviction suit or other allied suits, the suits would bedelayed, by which only the tenants will be benefited.”

14. In view of the aforesaid judgments, we find that the appellantis 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 representativeof the deceased competent to execute the decree. In view of the saidfact, the appellant as the legal representative is entitled to execute thedecree and to take it to its logical end.

15. In addition to the nature of proceedings to implead the legalrepresentative to execute the decree, we find that none of the tests laiddown in Section 115 of the Code were satisfied by the High Court so asto set aside the order passed by the Executing Court. The High Court inexercise of revision jurisdiction has interfered with the order passed bythe Executing Court as if it was acting as the first court of appeal. Anorder passed by a subordinate court can be interfered with only if itexercises its jurisdiction, not vested in it by law or has failed to exerciseits jurisdiction so vested or has acted in exercise of jurisdiction illegallyor with material irregularity. The mere fact that the High Court had a A

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Adifferent view on the same facts would not confer jurisdiction to interferewith an order passed by the Executing Court. Consequently, the orderpassed by the High Court is set aside and that of the Executing Court isrestored. The appeal is allowed.

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Appeal allowed.

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