Koneridoss vs N. Subbiah Naidu and Others

N.S. Ramaswami, J.—This revision petition is against the order in I.A. No. 282 of 1973 in O.S. No. 36 of 1963 on the file of the District

Munsif, Periyakulam, which is an application under Order 22, Rule 5, Code of Civil Procedure. One Seethammal filed the above suit for partition.

There was a preliminary decree and a second appeal (S.A. No. 935 of 1969) against the preliminary decree was pending in this Court. The said

Seethammal died. Koneridoss, the present revision petitioner who is the husband''s sister''s son of the above said Seethammal first got himself

impleaded as the legal representative of Seethammal in the second appeal (S.A. No. 935 of 1969). He had been so impleaded as the seventh

respondent in that second appeal. At a later stage, Subbiah Naidu, the contesting respondent herein, filed a petition before this Court in the above

second appeal for getting himself impleaded as the legal representative of Seethammal on the ground that Seethammal had left a registered will

under which he (Subbiah Naidu) is the sole legatee and that therefore he is the only legal representative of Seethammal. The abovesaid petition

(C.M.P. No. 14623 of 1970 in S.A. No. 935 of 1969) was disposed of by Ramanujam, J. The learned Judge did not decide who among the two

rival claimants is the legal representative of Seethammal but allowed both of them to be parties to the second appeal. Subbiah Naidu, (hereinafter

referred to as the respondent) was. added as the eighth respondent in the abovesaid second appeal. While Koneridoss (hereinafter referred to as

the revision petitioner) had already been added as the seventh respondent in the second appeal. The learned Judge in that order observed that as

there is rival claim as to who is the legal representative of deceased Seethammal both of them would be treated as legal representatives for the

purpose of the second appeal and that such order is without prejudice to the contentions of either of the parties. The learned Judge also directed

that the question regarding; the genuineness of the will set up by the respondent herein is a matter to be agitated in separate proceedings.

After the disposal of the second appeal I.A. No. 115 of 1968 in O.S. No. 36 of 1963 came to be filed for passing a final decree. Then the

respondent herein filed I.A. No. 282 of 1973, out of which the present revision petition arises, contending that by virtue of the will left by

Seethammal, he is the legal representative entitled to continue the proceedings and that therefore he should be impleaded as the legal representative

of Seethammal.

This application is under Order 22, Rule 5, Code of Civil Procedure. The learned District Munsif on a consideration of the evidence placed

before him held that the will propounded by the respondent is valid and that therefore he is the only legal representative of Seethammal and that the

revision petitioner herein who claims to be the heir of Seethammal (husband''s sister''s son) is not the legal representative of Seethammal.. It is this

order that is questioned in the present revision petition.

Being a revision u/s 115, Code of Civil Procedure, it is not open to the revision petitioner to canvass the correctness or otherwise of the factual

finding given by the learned District Munsif regarding the will. The contention of the learned Counsel for the revision-petitioner is that in view of the

order passed by Ramanujam, J. in C.M.P. No. 14623 of 1970 in S.A. No. 935 of 1969, the revision petitioner and the respondent should be

allowed to continue as the legal representatives of Seethammal even in subsequent proceedings (final decree proceedings) and that the Court

below is wrong in entertaining an application under Order 22. Rule 5, Code of Civil Procedure, filed by the respondent herein. The learned

Counsel referred to the decision of the Supreme Court reported in Rangubai Kom Shankar Jagtap Vs. Sunderabai Bhratar Sakharam Jedhe and

Others, . It has been observed by the Supreme Court that if the legal representatives are brought on record at one stage of the suit, it will enure for

the benefit of all subsequent stages of the suit. The contention of the learned Counsel is that the revision petitioner having been brought on record

as the legal representatives of Seethammal in the second appeal which arose against the preliminary decree passed in the suit, such impleading will

enure for all the subsequent stages including the final decree proceedings which are now pending in the trial Court. There can be no dispute that if

once a legal representative is impleaded in a suit that would have effect in respect of subsequent proceedings in the same suit. But in the present

case what has happened is, in the second appeal, the question as to who among the two rival claimants has to be impleaded as the legal

representative of Seethammal had not been decided and the learned Judge (Ramanujam, J.) has specifically left open that question to be decided in

separate proceedings. It would appear that while the revision petitioner came to be impleaded as the legal representative of Seethammal, the

respondent and others had no notice of such application. Whatever that be, when the respondent filed the C.M.P. in the second appeal far getting

himself impleaded as the legal representative on the basis of the will, the learned Judge did not go into the merits of the claim of the respective

parties as to who is entitled to represent the estate of Seethammal but allowed both of them to be on record only for the limited purpose of the

second appeal. As already seen, the learned Judge has reserved the dispute between the parties to be decided in separate proceedings.

The learned Counsel for the revision-petitioner contends that the separate proceedings contemplated by the learned Judge in his order in

C.M.P. No. 14623 of 1970 is a separate suit and not a proceeding as the present one. The contention is that even in the final decree proceedings,

both the revision petitioner and the respondent should be allowed to be parties as legal representatives of Seethammal and they ought to have been

referred to a separate suit to resolve the dispute between them. Though the contention of the learned Counsel appears to be plausible, on a careful

consideration I am of the view that the observation of the learned Judge in the abovesaid C.M.P. is not to be construed in the way in which the

learned Counsel for the revision-petitioner wants to construe. The learned Judge could not have contemplated that in the final decree proceedings

in the present suit both the rival claimants should be allowed to be on record without the Court deciding as to who among the two can properly

represent the estate of Seethammal. If both of them are allowed to be on record it would lead to a strange situation. In the final decree, the Court

has to decide as to whom the share of Seethammal is to he allotted. That apart, with regard to the division of the suit properties by metes and

bounds, the question would arise as to who among the two rival claimants should have a say. If both the rival claimants are allowed to be on

record one may contend that the division of the property should be in a particular way and the other may take a different view in the matter. It

would certainly create good deal of confusion. Under these circumstances when the learned Judge while disposing of C.M.P. No. 14623 of 1970

in Second Appeal No. 935 of 1969, left the dispute between the parties open., to be decided in separate proceedings, he could not have meant

that the Court below is not expected to go into the question as to who among the two can properly represent the estate of Seethammal. Therefore

the Court below is not wrong in entertaining I.A. No. 282 of 1973 under Order 22, Rule 5, Civil Procedure Code, and holding that the respondent

is the legal representative of Seethammal. The revision petitioner, therefore, should fail.

However, it must be made clear that the finding of the Court below regarding the validity of the will propounded by the respondent is not res

judicata in any suit that might be instituted by the revision-petitioner herein. It must be remembered that an order under Order 22, Rule 5, Civil

Procedure Code, is not an appealable one. Because it is not appealable the present revision petition has been filed as against that order. There is

no dispute that the order passed by the Court below is not an appealable one. In fact it has been pointed out by a Full Bench of this Court in

Venkatakrishna Reddi and Others Vs. Krishna Reddi, that no appeal lies against tan order under Order 22, Rule 5, Civil Procedure Code. The

enquiry made under Order 22, Rule 5, CPC is only summary in character. Even though witnesses might be examined in support of the contention

of either party to that proceedings, still the proceeding is only summary in character. In S. Eranhi Pakkran Vs. M.K. Pathumma and Others, it has

been held that the question whether a person should be admitted as the legal representative of the plaintiff to continue a suit cannot be regarded as

one of the questions arising in the suit itself being only a matter collateral to the suit and any decision arrived at cannot operate as res judicata when

a question arises in some other suit as to succession to the deceased. A Division Bench of the'' Allahabad High Court has also taken a similar view

in Ram Kalap v. Banshu Dhar 1958 All.L.J. 8. However, the learned Counsel for the revision-petitioner points out that in view of the decision of a

Division Bench of this Court reported in Appavoo Pillai v. Vijayammal Ammal (1972) 85 L.W. 936 difficulty might arise for the revision-petitioner

if he files a suit to establish his right to the estate of Seethammal. In the above decision, the Division Bench has observed that the decision of the

Court regarding who among the rival claimants is the legal representative would operate as constructive res judicata in a subsequent suit. But that is

a case where the dispute as to who is the legal representative of a deceased person arose in execution proceedings. Therefore the decision of the

Court regarding who among the rival claimants was the legal representative became an appealable order by virtue of Section 47, Code of Civil

Procedure. It should be noted that u/s 47 (3) where a question arises as to whether any person is or is not a representative of the party such

question shall for the purpose of that section be determined by the Court. Therefore if an executing Court decides as to who among the rival

claimants is the legal representative of a party, that decision is appealable. In Rangaswami Naicker v. Rangammal, Venkataraman, J., has also

taken the same view. Even though the Division Bench which decided Rangaswami Naicker Vs. Rangammal (died) by proposed L.R., K.R.

Venkataswami Naidu, had not stated so, I am clearly of the view that because the order regarding the legal representative in that case was one

falling u/s 47, Civil Procedure Code, and therefore it was appealable, the Division Bench has held that under such circumstances it would operate

as res judicata in a subsequent suit. If such a view is not taken of the above decision of the Division Bench it would be going counter to the

decision of this Court in S. Eranhi Pakkran Vs. M.K. Pathumma and Others, already referred to which is also a decision by a Division Bench.

When there is a Bench decision directly on the point, a subsequent Bench, unless it is a larger Bench, cannot possibly take a different view. Under

these circumstances, the decision in Appavao Pillai v. Vijayammal Ammal (1913) 85 L.W. 936 would in no way prejudice the revision-petitioner

in his right to file a separate suit to establish his claim to the estate of Seethammal. In fact this position is conceded by Mr. N. Sivamani, learned

Counsel appearing for the respondent and he unequivocally stated that if and when the revision-petitioner files a suit claiming the estate of

Seethammal, the plea that the decision in I.A. No. 282 of 1973 which is the subject-matter of the present revision petition is res judicata against

the plaintiff would not be raised.

The revision petition fails and is dismissed. No costs.