RANGAPPA KELAVADEPPA Vs. RINDAWA AND VASANGOUDA

JUDGEMENT

(1.) THIS is a second appeal arising from a suit filed by one Rangappa, who claims to be the adopted son of one Kelvadeppa. It appears that this Kelvadeppa had obtained a decree against Venkappa, the father of the plaintiff Rangappa, Rangappa himself and three other sons of Venkappa. The decree was for partition and separate possession of two properties situated in the Badami taluka of the Bijapur District. Kelvadeppa died after filing an application for execution of the decree, and a question arose as to whether his sister, the defendant Rindawa, was entitled to be brought on the record as his legal representative for the purpose of carrying on execution. Rindawa claimed under a will left by her brother; but the genuineness of this will was denied by all the four defendants-judgment-debtors. The question was then tried, and it was held by the executing Court that the will was a genuine one. It appears that the execution proceedings were then carried on by Rindawa.

(2.) SUBSEQUENTLY the plaintiff filed the suit, from which the present second appeal arises, for recovery of possession of all the properties left by Kelvadeppa, upon the footing that he was the adopted son of Kelvadeppa, and the will, which had been propounded by Rindawa, was not a genuine one. Rindawa claimed, among other things, that the agitation of the question as to whether the will was genuine was barred by the adjudication in the earlier execution proceedings. She has succeeded upon this point in both the lower Courts, and the only question in the present appeal is as to whether there was such a bar of 'res judicata',

(3.) THE bar under Section 47 (3) has also been mentioned, and it would be convenient to dispose of it in a few words. Now Section 47 (3) says that where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. The words "for the purposes of this section" make it quite clear that agitation of the same question is not barred for purposes other than those of Section 47, because of the provisions of Section 47 (3 ). Otherwise, there could be no point in the Legislature using the words "for the purposes of this section". We do not intend to suggest that when any such question as falls within the purview of Section 47 (3) arises, a separate suit for the agitation of the same question is always permissible. But the Sub-section itself does not bar the agitation of the question, which is determined under the provisions of that Sub-section only for the purpose of Section 47, in subsequent suits. The agitation of such questions by a separate suit is barred when the question arises between parties to the suit in execution proceedings and relates to execution, satisfaction or discharge of the decree. Its agitation in subsequent suits may be barred, for example, under Section 11 of the Code of Civil Procedure or upon general principles of 'res judicata', their Lordships of the Privy Council having laid down that Section 11 is not exhaustive. But Section 47 (3) itself does not bar the agitation of the question in a subsequent suit.