Legal Representatives – determinaed by courts pending the suit/EP etc., on the death of party – is only for limited purpose and not operate as resjudicate in full fledged disputes like Probate etc., proceedings. 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. 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. Apex court held that 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. 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.” 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.

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’
    1
    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
    2
    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
    3
    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
    4
    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 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.”
  9. 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.
  10. 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
    5
    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)
  11. 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.”
  12. 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 Ayyar
    4
    .
  13. 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
    6
    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
  14. We are, therefore, of the opinion that in essence a
    7
    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.”
  15. 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
    6
    . 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
    8
    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
  16. 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.
  17. 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
    9
    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).”
  18. 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
    10
  19. 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.”
  20. 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.
  21. 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.
    12