AKALA A. KRISHNAPPA Vs. ASWATHA NARAYANA

JUDGEMENT

(1.) FATHER of the petitioner filed Original Suit in OS No. 160 of 2005 for ejectment and also mesne profits. The said suit was filed on 15th December 2005 and was decreed on 25th November 2006. The defendant -respondent filed IA.VIII of 2007 and the same also came to be dismissed on 28th January 2012. In the meanwhile the plaintiff died on 3rd December 2010. On the basis of the decree, the petitioner claiming that he is the legal representative of late Krishnappa, filed Execution petition under Order XXI Rule 11 of the Code of Civil Procedure. During the pendency of the said petition, objection has been filed by the defendant disputing the legal heir -ship of the petitioner. On the basis of the objection filed, the Trial Court dismissed the execution petition filed by the petitioner on 12th February 2015. Hence, the petition.

(2.) THE learned counsel for the petitioner submits that when the status of legal heir -ship is disputed, then it is the duty of the Court to pass an order under Order XXII Rule 5 of the Code of Civil Procedure. Hence, it is submitted that when such an application is made, the Court has to determine the question of legal heir -ship. Proviso to Rule 5 further enables the Court to record the evidence, if any, and give a finding on the application filed. In the instant case, no such reasons have been assigned as is required under the said provision. In order to support his submission, the learned counsel produced the order sheet as per Annexure -E1 from 8th July 2014 to 29th January 2015 and submits that on all occasions, the matter was posted for hearing and at no point of time neither the objections raised by defendant under Order XXII Rule 5 of the Code of Civil Procedure were heard nor evidence was recorded or reasons were assigned, which are mandatory.

(3.) IT is in this background I have examined the case of the petitioner in the light of the reasons assigned by the Court below. When an application is filed in the execution petition claiming that he is the legal heir of the judgment debtor, it is the jurisdiction of that Court to determine the fact about the legal heir -ship. It contemplates that where a question arise as to whether legal heir -ship of the deceased with the plaintiff or the defendant, such question has to be determined by the Court. The determination of the Court with regard to the legal heir -ship would depend upon the facts and materials available on record. When the legal heir -ship is disputed by the defendant for the purpose of giving a finding, the proviso further provides that the Court may, before determining the legal heir -ship shall try the question and record its finding and reasons thereof. In view of the proviso to Order XXII Rule 5 of the Code of Civil Procedure, suffice it to remand the case to Trial Court to give a finding. In the result, I pass the following: