RAMA MARUTI CHAUGULE Vs. MALLAPPA KRISHNA CHAUGULE

JUDGEMENT

(1.) THE question in this appeal is whether the finding about the plaintiff's adoption in a former execution proceeding operates as res judicata in a subsequent suit between the same parties.

(2.) THE plaintiff brought the present suit to recover certain properties on the strength of an adoption made by a widow Shivubai to her husband Krishna who was their owner. After Shivubai's death, plaintiff's natural mother acting as his guardian had leased the suit lands to defendant No.3 for ten years after the adoption. Defendant No.3, however, in collusion with defendants. Nos. 1 and 2, made over possession to them alleging that he was the tenant of defendant No.1. THE plaintiff, therefore, filed the suit to recover the lands. Defendant No.1, who was the contesting defendant, admitted that the lands. belonged to Krishna, and thereafter to his widow Shivubai. He, however, disputed the plaintiff's adoption on the ground that Shivubai was not in a sound mental condition so as to take the plaintiff in adoption. THE question, therefore, was whether the plaintiff was adopted by Shivubai. On that point the plaintiff relied upon a decision in previous execution proceedings. A decree had been obtained by Shivubai against defendant No.1, and she filed a darkhast to recover the costs awarded to her. During the pendency of the darkhast Shivubai died, and the present plaintiff applied to the executing Court for substitution as her legal representative on the strength of his adoption. Defendant No.1 contested the adoption and opposed the application. THE executing Court, after hearing evidence on the point of adoption, held that the plaintiff was validly adopted, and that he was, therefore, entitled to continue the execution proceedings. THEre was an appeal against that order and the finding was upheld.

(3.) IT has been recently held by our Court in Shamrao v. Shantaram (1934) 37 Bom. L.R. 123 that a decision arrived at in execution proceedings operates as res judicata in a subsequent suit between the same parties. IT is, however, contended on be-half of the appellant that the principle of this latter decision would not apply where the question was about a particular person being the legal representative of a deceased party. IT is urged that that question falls really under Order XXII, Rule 5, and not under Section 47, and that an order under Order XXII, Rule 5, does not operate as res judicata as held in Antu Rai v. Ram Kinkar Rai (1935) I.L.R. 58 All. 734. In my opinion, it is doubtful whether Order XXII, Rule 5, would apply to execution proceedings in view of the fact that Order XXII, Rules 3 and 4, on which Rule 5 is dependent, do not apply to execution proceedings as laid down in Rule 12. Therefore, the present case is governed by Section 47, Sub-section (3), and not by Order XXII, Rule 5 . The decisions relied upon on behalf of the appellant in Antu Rai v. Ram Kinkar Rai, Chiragh Din v. Dilawar Khan [1934] A.I.R. Lah. 485, and Zalim v. Tirlochan Prasad [1937] A.I.R. Oudh 220, F.B. relate to the applicability of the principle of res judicata to orders under Order XXII, Rule 5, passed in suits and not in execution proceedings.