VARADARAJAN versus KANAKAVALLI & ORS.

Citation: [2020] 1 S.C.R. 132 · Decided: 22-01-2020 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 1 S.C.R.
VARADARAJAN
v.
KANAKAVALLI & ORS.
(Civil Appeal No. 5673 of 2009)
JANUARY 22, 2020
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
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
   [2020] 1 S.C.R. 132
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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.
VARADARAJAN v. KANAKAVALLI & ORS.
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SUPREME COURT REPORTS
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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 basi
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