The bench comprising of Justice L.Nageswara Rao and Justice Hemant Gupta passed a judgement in case titled as Varadarajan v. Kanakavalli & Ors.
Facts of the case are that Umadevi filed a suit for partition and separate possession in respect of the suit property as the successor-in-interest of one, her husband. Prior to Umadevi, he had earlier married another lady and had a child. Her husband died in the year 1971. Umadevi filed a suit for partition claiming half share in the suit property. The appellant who is the son of Umadevi’s younger sister after the death of Umadevi, filed an application to execute the decree as her legal representative on the basis of a Will.
The High Court stated that the normal principle arising in a suit before the decree is passed is 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.
The Supreme Court observed that 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.
The Supreme Court, disagreeing with High Court, held that,
“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.”
The Supreme Court further stated that, “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.”
The bench referred a judgement stating that Rule 12 engrafts an exemption which provides that where a party to an execution proceeding 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 proceedings or they may file a fresh execution application.
The Supreme Court held 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
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