The Supreme Court has stated 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.

In this particular case, Uma Devi, a decree holder, passed away during the pendency of Execution Petition filed by her. The son of Umadevi’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 then held that the legal representative of the deceased Umadevi is entitled to execute the decree. It also rejected the objection made by Judgment Debtor that the Will was forged and the son of a sister is not a legal heir as per Section 15 of the Hindu Succession Act, 1956. The High court also held that the execution of the will in the said matter was surrounded by suspicious circumstances.

The Supreme Court Bench comprising of Justices L. Nageshwara Rao and Hemant Gupta observed, “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 also stated, “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 vs. 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 proceeding or they may file a fresh execution application.”

The Bench thus allowed the appeal and held that as the legal representative of the deceased, the appellant was competent to execute the decree.

Link to Image: http://bit.ly/2Rph4BE

Link to Judgment: Varadarajan v. Kanakavalli & ors.