SHEEL CHAND Vs. KALU

JUDGEMENT

(1.) This second appeal has been filed against the appellate order of the learned Additional Commissioner, dated 21.9.56 and arises out of the following circumstances: - -

(2.) Mst. Anni, widow of Chhotelal, brought the suit for recovery of possession against Kalu in respect of the land in dispute and obtained a decree from the court of the Assistant Collector, Alwar on 16.8.54. Kalu preferred an appeal against his decree in the court of the learned Additional Commissioner which was rejected on 26.11.54. Second appeal was filed before the Board by Kalu and it appears that during the pendency of the same Mst. Anni died. Sheelchand was brought on record in that second appeal as a legal representative of the deceased, Mst. Anni and thereafter Kalus appeal was rejected and the concurrent decrees of the lower courts were upheld. Subsequently, Sheelchand applied for execution of the decree and Kalu Judgment -debtor raised an objection before the executing court that Sheet Chand was not entitled to seek execution of the decree which was in favour of the deceased Mst. Anni. The executing court finding that Sheelchands name appeared in the decree drawn up by the Board as decree - holder, refused to entertain this objection. Kalu went up in appeal before the learned Additional Commissioner who held that the executing court "acted hastily in rejecting the application in a summary manner without making necessary enquiry as to how Sheelchand, respondent, canclaim to be the successor of Mst. Anni." He, therefore, remanded the case for further enquiry on the point. Sheelchand has challenged this order before us in second appeal.

(3.) We have heard the learned counsel appearing for the parties and have examined the record as well. Sheelchand brought on record was under the provisions of Order 22 of the Civil Procedure Code. As provided in Rule 5 of this order, where a question arises as to whether any person is or is not the legal representative of a deceased party, such question shall be determined by the court. An order under this rule will enable the person to represent the estate in the suit and will make an adjudication therein binding on the estate. To this extent and in this sense, it is final. The mere admission of a person as a legal representative for the purpose of further prosecution of the suit will not, however, conclusively establish his right to do so, if his legal position is one of the main or vital issues in the suit itself. (Chitaley C. P. C. 2707 note 7, Order 22 Rule 5 No. 7.).