Code of Civil Procedure, 1908 – Or. XXII, r.5 and s.115 – Wife filed suit inter alia for partition in respect of the suit property as the successor-in-interest of her husband – Husband had a son from his earlier marriage – Suit decreed – She sought execution of the decree but, died soon thereafter – Appellant, the son of deceased’s younger sister filed application to execute the decree as her legal representative on the basis of a Will – Allowed – Appellant sought eviction of the respondent and for delivery of vacant possession of the premises – Executing Court held that the appellant as legal representative of the deceased is entitled to execute the decree – High Court in revision found that the execution of the Will was surrounded by suspicious circumstances and thus, held that the appellant cannot become a legal representative to come on record in order to maintain the execution petition – On appeal, held: Appellant is the sole claimant to the estate of the deceased on the basis of Will – Witnesses deposed the execution of the Will in favour of the appellant – No one else came forward to seek execution of decree as the legal representative of the deceased decree holder – In the absence of any rival claim, the High Court was not justified in setting aside the order of the Executing Court, when in terms of Or.XXII, r.5, the jurisdiction to determine who is a legal heir is summary in nature – Or. XXII 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 r.5 of Or.XXII – Further, in addition to the nature of proceedings to implead the legal representative to execute the decree, none of the tests laid down in s.115 were satisfied by the High Court so as to set aside the order passed by the Executing Court – High Court in revision jurisdiction interfered with the order passed by the Executing Court as if it was acting as the first court of appeal – Mere fact that it had different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court – Order passed by the High Court is set aside and that of the Executing Court is restored.
Code of Civil Procedure, 1908 – s.115 – Revision – Jurisdiction of High Court – Discussed.
Allowing the appeal, the Court
HELD: The order of the High Court is not sustainable in law. The appellant claims to be the legal representative of the deceased decree holder 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 her 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 the deceased decree holder who filed the execution petition but after her death, the appellant 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. 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. [Paras 7, 8] [137-E-H]
V. Uthirapathi v. Ashrab & Ors. (1998) 3 SCC 148 : [1998] 1 SCR 937 ; Daya Ram & Ors. v. Shyam Sundari & Ors. AIR 1965 SC 1049 : [1965] SCR 231 ; Dashrath Rao Kate v. Brij Mohan Srivastava (2010) 1 SCC
277 : [2009] 15 SCR 643 ; Jaladi Suguna (Deceased) through LRs. v. Satya Sai Central Trust & Ors. (2008) 8 SCC 521 : [2008] 7 SCR 734 ; Suresh Kumar Bansal v. Krishna Bansal & Anr. (2010) 2 SCC 162 : [2009]
16 SCR 419 – relied on.
Kadir v. Muthukrishna Ayyar ILR 26 MAD 230 ;
Mohinder Kaur & Anr. v. Piara Singh & Ors. AIR 1981 P&H 130 – referred to.
1.2 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. In addition to the nature of proceedings to implead the legal representative to execute the decree, it is found 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 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. [Paras 14, 15] [143-E-G; 144-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.