MAHANTH SATYANAND @ RAMJEE SINGH versus SHYAM LAL CHAUHAN AND OTHERS

Citation: [2018] 2 S.C.R. 521 · Decided: 08-02-2018 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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MAHANTH SATYANAND @ RAMJEE SINGH
v.
SHYAM LAL CHAUHAN AND OTHERS
(Civil Appeal No. 6318 of  2010)
FEBRUARY 08, 2018
[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
Code of Civil Procedure, 1908: O.XXII, r.5 – Impleadment of
legal representative in pending appeal – High Court allowing
impleadment applications preferred by rival contenders entitling
both the contenders to raise their respective arguments in subject
matter of suit without determining as to who is the actual legal
representative of the deceased – Propriety of – Held:  When a
question arises before the Court in a pending matter as to who will
come on record as the legal heir of the deceased, the Court shall,
before proceeding to decide with the substantive issues involved in
the case, first and foremost, shall decide who is the legal
representative of the deceased – Without doing so, the Court cannot
proceed with the disposal of the case on hand – At the same time,
the Court cannot make all the contenders as parties – The aspect of
deciding legal representative cannot also be postponed with a view
to decide the same at the time of final disposal of the appeal on
merits – The statute has clearly mandated that if the question of
deciding the legal representative of a legatee arises before an
appellate Court, it may direct the subordinate Court to make
enquiries by leading evidence if any through the process of trial
and record its finding as to who is the legal representative – After
considering the finding recorded by the trial Court, the appellate
Court can decide and bring on record the legal representative of
the deceased – Matter remitted to High Court  for determining the
issue as per provisions of O.XXII, r.5 of the Code.
Allowing the appeals and remitting the matter to High
Court, the Court
HELD: 1. The issue of bringing on record the legal
representative in a pending appeal has to be dealt with in a when
a question arises before the Court in a pending matter as to who
will come on record as the legal heir of the deceased, the Court
[2018] 2  S.C.R. 521
521
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SUPREME COURT REPORTS
[2018]  2 S.C.R.
shall, before proceeding to decide with the substantive issues
involved in the case, first and foremost, shall decide who is the
legal representative of the deceased manner prescribed under
the provisions of Order XXII, Rule 5. When a question arises
before the Court in a pending matter as to who will come on
record as the legal heir of the deceased, the Court shall, before
proceeding to decide with the substantive issues involved in the
case, first and foremost, shall decide who is the legal
representative of the deceased. It is also well settled that when a
party dies at the stage of second appeal and there are rival
contenders claiming to be the legal representatives of the
deceased, as in the present case, there is a burden cast upon the
Court to first decide as to who is the legal representative of the
deceased. Without doing so, the Court cannot proceed with the
disposal of the case on hand. At the same time, the Court cannot
make all the contenders as parties. The aspect of deciding legal
representative cannot also be postponed with a view to decide
the same at the time of final disposal of the appeal on merits.[Para
10] [526-H; 527-A-C]
2. It is indisputable that the procedural laws are meant to
advance justice. A procedure contemplated under the code which
is mandatory in nature shall not be skipped or ignored by the
Courts. Whereas, in the instant case, the High Court’s approach
has diluted the purport of Order XXII, Rule 5 of the CPC.  [Para
11] [527-E-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6318
of 2010.
From the Judgment and Order dated 24.02.2009 of the High
Court of Judicature at Patna in Second Appeal No. 169 of 1993.
WITH
C. A. NO. 6319 OF 2010
Nagendra Rai, R. Venkataramani, Sr. Advs., Ms. Prerna Singh,
Rohit K. Singh, T. Mahipal, Atishi Dipankar, Santosh Kumar, Sukumar,
Jitendra Kumar, Prafulla Ranjan Tiwary, Rajiv Ranjan Mishra, Atishi
Dipankar, T. Mahipal, G. Umapati, Ardhendumauli Kumar Prasad, Ms.
Taruna Ardhendumauli Prasad, Namit Saxena, Nirnimesh Dube, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
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N. V. RAMANA, J. 1. These appeals by special leave are
directed against an interim order dated 24.2.2009 passed by the learned
Single Judge of the High Court of Judicature at Patna in Second Appeal
No. 169 of 1993.In the said appeal, while dealing 

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