Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Code of Civil Procedure |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Code of Civil Procedure, 1908 (5 of 1908) |
Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Code of Civil Procedure, 1908 – Or. XXII, r.5 and s.115 – Wife filed suit inter alia for partition in respect of the suit property as the successor-in-interest of her husband – Husband had a son from his earlier marriage – Suit decreed – She sought execution of the decree but, died soon thereafter – Appellant, the son of deceased’s younger sister filed application to execute the decree as her legal representative on the basis of a Will – Allowed – Appellant sought eviction of the respondent and for delivery of vacant possession of the premises – Executing Court held that the appellant as legal representative of the deceased is entitled to execute the decree – High Court in revision found that the execution of the Will was surrounded by suspicious circumstances and thus, held that the appellant cannot become a legal representative to come on record in order to maintain the execution petition – On appeal, held: Appellant is the sole claimant to the estate of the deceased on the basis of Will – Witnesses deposed the execution of the Will in favour of the appellant – No one else came forward to seek execution of decree as the legal representative of the deceased decree holder – In the absence of any rival claim, the High Court was not justified in setting aside the order of the Executing Court, when in terms of Or.XXII, r.5, the jurisdiction to determine who is a legal heir is summary in nature – Or. XXII is applicable to the pending proceedings in a suit – But the conflicting claims of legal representatives can be decided in execution proceedings in view of the principles of r.5 of Or.XXII – Further, in addition to the nature of proceedings to implead the legal representative to execute the decree, none of the tests laid down in s.115 were satisfied by the High Court so as to set aside the order passed by the Executing Court – High Court in revision jurisdiction interfered with the order passed by the Executing Court as if it was acting as the first court of appeal – Mere fact that it had different view on the same facts would not confer jurisdiction to interfere with an order passed by the Executing Court – Order passed by the High Court is set aside and that of the Executing Court is restored. |
Judge | Hon'ble Mr. Justice Hemant Gupta |
Neutral Citation | 2020 INSC 75 |
Petitioner | Varadarajan |
Respondent | Kanakavalli & Ors. |
SCR | [2020] 1 S.C.R. 132 |
Judgement Date | 2020-01-22 |
Case Number | 5673 |
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