The Supreme Court has observed that the conflicting claims of legal representatives can be decided in execution proceedings in view of the principles of Rule 5 of Order XXII of the Code of Civil Procedure.
During the pendency of Execution Petition filed by Uma devi, she died. The son of Uma devi’s younger sister filed an application to execute the decree as her legal representative on the basis of a Will, which was allowed by the Trial Court. The Executing Court held that legal representative of the deceased Umadevi is entitled to execute the decree. It rejected the objection made by Judgment Debtor 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 High Court, in the revision petition filed by the judgment debtor, held that, the execution of the Will was surrounded by suspicious circumstances.
Disagreeing with the High Court’s view, the bench observed:
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.
It further said:
“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 also referred to a judgment in V. Uthirapathi v. Ashrab which had relied on this comment in Mulla’s Commentary on CPC: “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 proceedings or they may file a fresh execution application.”
Taking note of the fact that the appellant was the sole claimant to the estate of the deceased on the basis of Will, the bench, allowing the appeal, held that he, as the legal representative of the deceased, is competent to execute the decree.