KARAN SINGH AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) THE challenge by means of this first appeal under Section 295 of the Indian Succession Act, 1925, is to the impugned order dated 20.12.2010 passed by the trial court, whereby the probate petition of the Petitioner was dismissed on two counts. The first count was that in an earlier proceeding between the parties it was held that there is no valid Will dated 4.9.1986, and which will itself was relied upon by the Petitioner in the present probate petition. It was thus held that the probate petition was barred by res judicator/issue estoppels. The second count for dismissal of the petition was that the petition was held to be barred by time.

(2.) LEARNED Counsel for the Appellant at the outset argued that if the trial court resorted to the provision of the Order 7 Rule 11 Code of Civil, then, the contents of the plaint were deemed to be correct and consequently, there could not have been further finding of facts. To this aspect, the learned Counsel for the Appellant is correct, however, that would not mean setting aside of the impugned order because the provision of the law under which the order is passed, if it is wrongly stated by the trial court, cannot mean that the order becomes illegal, once it is found to that there is a correct provision of law under which the order could have been passed. The order, in fact, has been passed under Order 12 Rule 6 Code of Civil Procedure which provides that on admitted facts, a case can be disposed of. Decree as defined under Section 2(2) Code of Civil Procedure includes decision on , one or all of the matters in controversy. In a case where a suit is allowed a decree is passed and where the suit is dismissed, a decree also is drawn up. Decree includes dismissal of the suit. The impugned order therefore can be taken as having been passed under Order 12 Rule 6 Code of Civil.

(3.) THE trial court in this regard in the impugned judgment has validly observed as under: