K. Susamma Zacharia v. K. Susan Joseph, K. Soumini Joseph, K. Zacharia Zacharia, Mary Abraham, Thankamma Zacharia, Jolly Cherian, Susan K. George (OP(C) No. 235 of 2011)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 OP(C).No. 235 of 2011(O) -----------------------AGAINST THE ORDER IN EA 820/04 IN EP 630/03 IN OS.273/1995 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITONER(S): ----------------------------- K.SUSAMMA ZACHARIA @ SOSAMMA ZACHARIA, D/O.LATE K.J.ZACHARIA,AGED 49 YEARS,RESIDING AT KARINGATTIL HOUSE,C.T.UMMER ROAD,ERNAKULAM,COCCHIN -682035,KARITHALA DESOM,ERNAKULAM VILLAGE, KANAYANNUR TALUK. BY SENIOR ADV. SRI.S.SREEKUMAR SRI.K.C.ELDHO SRI.JIJO THOMAS RESPONDENT(S): - --------------- 1. K.SUSAN JOSEPH,LILLY DALE,UNDAPLAVU, PODIYADI.P.O,PATHANAMTHITTA-689110. 2. K.SOUMINI JOSEPH,LILLY DALE,UNDAPLAVU, PODIYADI.P.O,PATHANAMTHITTA-689110. 3. K.ZACHARIA ZACHARIA,KARINGATTIL HOUSE, STATION CROSS ROAD,KOCHI-35. 4. MARY ABRAHAM,CHAKALAYIL HOUSE,ARTHOTTY JUNCTION,KOTTAYAM-686001. 5. THANKAMMA ZACHARIA @ THANKAMMA CHERIAN, D/O.LATE K.J.ZACHARIA,AGED 70 YEARS,RESIDING AT KARINGATTIL HOUSE,C.T.UMMER ROAD,ERNAKULAM, COCHIN-682035,KARITHALA DESOM,ERNAKULAM VILLAGE, KANAYANNUR TALUK. 6. JOLLY CHERIAN,SHALEM,VAYALIL ROAD, THIRUVANKULAM.P.O,ERNAKULAM DISTRICT,PIN-682305. OP(C) NO.235/2011 2 7. SUSAN.K.GEORGE,SHALEM,VAYALIL ROAD, THIRUVANKULAM.P.O,ERNAKULAM DISTRICT-682305. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R6 &7 SRI ASHOK KUMAR FOR R6 & R7 SRI.SAJU.S.A FOR R6 &7 SRI.N.C.SAJITH FOR R1 & R2 SRI.JEEMON P.ABRAHAM FOR R1 & R2 SRI.V.L.SHENOY FOR R5 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C0 NO.235/2011 ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF THE EP NO.630/2003 IN OS 273/1995 ON THE FILE OF THE PRINCIPAL SUB COURT, ERNAKULAM EXT.P2 A TRUE COPY OF THE PRELIMINARY DECREE DATED 15.11.1995 IN OS 273/1995 ON THE FILE OF THE PRINCIPAL SUB COURT, ERNAKULAM EXT.P3 A TRUE COPY OF THE FINAL JUDGMENT IN OS 273/1995 ON THE FILE OF THE PRINCIPAL SUB COURT, ERNAKULAM EXT.P4 A TRUE COPY OF EA NO.820/2004 IN EP NO.630/2003 IN OS 273/1995 ON THE FILE OF THE PRINCIPAL SUB COURT, ERNAKULAM EXT.P5 A TRUE COPY OF THE ADDITIONAL OBJECTION FILED TO EXT.P1, EXECUTION PETITION EXT.P6 A TRUE COPY OF ORDER DATED 20.02.2009 IN EA NO.820/2004 IN EP NO.630/2003 IN OS 273/1995 OF THE EXECUTION COURT EXT.P7 A TRUE COPY OF THE JUDGMENT DATED 26.6.2009 IN WP(C) NO.11702/2009 OF THIS COURT EXT.P8 A TRUE COPY OF THE IMPLEADING PETITION IN EXT.P4, PETITION VIDE EA NO.820/2004 EXT.P9 A TRUE COPY OF THE ORDER DATED 18.12.2010 IN EA NO.820/2004 IN EP NO.630/2003 IN OS 273/1995 ON THE FILE OF THE PRINCIPAL SUB COURT, ERNAKULAM //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.235 of 2011 -------------------------------------Dated this the 26[th] day of August, 2011.** ## **JUDGMENT** Ext.P9, order dated December 18, 2010 on E.A.No.820 of 2004 in E.P.No.630 of 2003 in O.S.No.273 of 1995 of the court of learned Principal Sub Judge, Ernakulam is under challenge. Dispute arose as to whether it is the petitioner (claiming under an unregistered Will allegedly executed by the deceased K.George Zacharia) or, respondents 6 and 7 who are the legal heirs of the deceased K.George Zacharia who should represent the estate of the said K.George Zacharia in the suit for partition where a final decree was passed and it is being executed. Respondents 6 and 7 were impleaded as legal heirs of the deceased K.George Zacharia in the petition filed by defendants 2 to 4 (who are the legal heirs of the deceased Joseph Zacharia) for delivery of their share. Later respondents 6 and 7 filed application for delivery of the share allotted to the deceased K.George Zacharia in the final decree. On getting notice of that application, petitioner resisted the claim of respondents 6 and 7 on the strength of the Will (allegedly) executed by the said K.George Zacharia bequeathing his share to the petitioner. Executing court permitted the parties to adduce evidence regarding the alleged execution of the Will. Executing court felt that the disputed Will is required to be sent to the expert for opinion and accordingly passed an order to that effect. Petitioner challenged that order in this Court in W.P.(C) No.11702 of 2009. This Court disposed of that Writ Petition as per Ext.P7, judgment. This Court considered the question whether the dispute **OP(C)No.235/2011** 2 between petitioner and respondents 6 and 7 as to who is entitled to represent the estate of the deceased K.George Zacharia is a matter coming under Sec.47 of the Code of Civil Procedure (for short, “the Code”) required to be decided by the executing court since respondents 6 and 7 who are the legal heirs of the deceased K.George Zacharia have already been made parties in the execution petition. The order to send the document to the expert was set aside and the executing court was directed to decide whether any enquiry on substitution of legal representatives of late K.George Zacharia is required. Pursuant to that direction the executing court considered the question and passed Ext.P9, order and concluded that since respondents 6 and 7 as legal heirs are already on record it is not necessary to conduct an enquiry as to whether petitioner is entitled to represent the estate of the deceased K.George Zacharia on the strength of the disputed Will. E.A.No.820 of 2004 filed by respondents 6 and 7 was allowed and the plot allotted to the deceased K.George Zacharia (plot F) in the final decree was directed to be delivered to respondents 6 and 7. The said order is under challenge. 2. Learned Senior Advocate appearing for petitioner contended that the executing court has proceeded on a wrong assumption that the dispute in the present case as to who is the legal representative of the deceased K.George Zacharia is not a matter coming under Sec.47 of the Code. It is also **OP(C)No.235/2011** 3 contended that by virtue of Rule 5 of Order XXI of the Code it was necessary for the executing court to conduct an enquiry as to who is the legal representatives of the deceased K.George Zacharia. Learned Senior Advocate has placed reliance on the decisions in **A.G.M. Constructions (P) Ltd. v. Shibu Kumar (2010 (4) KLT 189), Dashrath Rao Kate v. Brij Mohan Srivastava ((2010) 1 SCC 277)** and **Suresh Kumar Bansal v. Krishna Bansal and another ((2010) 2 SCC 162)** . It is also pointed out that both sides have adduced defence in respect of their respective claim and in that circumstance and in the view of the law on the point the executing court was bound to decide who among petitioner and respondents 6 and 7 is entitled to get the share of the deceased K.George Zacharia. It is contended by learned Senior Advocate that any decision on the said question by the executing court would not also operate as res judicata in a suit on title the party aggrieved may institute. 3. Learned Senior Advocate appearing for respondents 6 and 7 in response contended that the inter se dispute between the parties herein as to who among them are the legal representatives of the deceased does not arise for a decision under Sec.47 of the Code. It is submitted by learned Senior Advocate that Rule 5 of Order XXII of the Code cannot be read disjunctively with **OP(C)No.235/2011** 4 Rules 3 and 4 of the said Order and when Rules 3 to 5 are read together, it is clear that Rule 5 cannot apply to disputes of this nature arising in the execution proceeding. It is also submitted by learned Senior Advocate that the decisions relied on by learned Senior Advocate appearing for petitioner have no application to the facts of the case. It is submitted that even as early as in the year, 2003, respondents 6 and 7 were impleaded in the execution petition as legal representatives of the deceased K.George Zacharia and dispute as to their right to represent the estate of the deceased K.George Zacharia arose only in the year, 2007 when petitioner came up with an unregistered Will in answer to Ext.P4, application filed by respondents 6 and 7 requesting to deliver to them the plot allotted to the deceased K.George Zacharia. In the circumstances there is no scope for any enquiry under Rule 5 of Order XXII of the Code, it is contended. 4. It is necessary to refer to the facts in dispute. Four persons viz., Mary Abraham, K.George Zacharia, Thankamma Cherian and K.Susamma Zacharia filed the suit for partition of the schedule properties. On the opposite side were, K.Zacharia Zacharia and defendants 2 to 4 (who represented the estate of the deceased Joseph Zacharia). A preliminary decree for partition was passed whereby four shares were allotted to the plaintiffs including the deceased K.George Zacharia. One share was allotted to the 1[st] defendant and the remaining one share went to defendants 2 to 4, jointly. That was followed **OP(C)No.235/2011** 5 by Ext.P3, final decree. K.George Zacharia expired on 18.12.2002. Defendants 2 to 4 filed E.P.No.630 of 2003 requesting to deliver the property allotted to them. In that execution petition, respondents 6 and 7 were shown as the legal representatives of the deceased K.George Zacharia. It is not disputed that as prayed for in E.P.No.630 of 2003, the E schedule property was delivered to defendants 2 to 4. Later, respondents 6 and 7 (shown as judgment debtors in E.P.No.630 of 2003) filed Ext.P4 – E.A.No.820 of 2004 seeking delivery of the share set apart to the deceased K.George Zacharia. On that application notice was given to the petitioner who raised objection that respondents 6 and 7 are not entitled to represent the estate of the deceased K.George Zacharia and get delivery of the share allotted to the said K.George Zacharia in view of the bequest petitioner claimed as per the (disputed) unregistered Will. It is regarding the due execution of the unregistered Will that the executing court as aforesaid conducted an enquiry, directed that the Will be sent to the expert for opinion and which this Court by Ext.P7, judgment set aside directing the executing court to decide whether any such enquiry itself is required which the executing court has answered in the negative by Ext.P9, order and directed that as prayed for in E.A.No.820 of 2004 the property allotted to the deceased K.George Zacharia be delivered to respondents 6 and 7 (they being the legal heirs of the deceased K.George Zacharia). **OP(C)No.235/2011** 6 5. Question is whether the claim made by petitioner that she is the legal representative of the deceased K.George Zacharia in view of the bequest vide the unregistered Will is required to be enquired into by the executing court? In **A.G.M. Constructions (P) Ltd. v. Shibu Kumar** the question considered was whether a pendente lite purchaser is a legal representative of a party to the proceeding as understood in Section 47 of the Code and the question was answered in the affirmative. Now the question is whether an enquiry is required as to who is the legal representative of the deceased K. George Zacharia. Rule 5 of Order XXII of the Code is pressed into service by the learned Senior Advocate for petitioner. The said provision says that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the court. The proviso thereto deals with a situation where such question is required to be decided by the appellate court which is not germane for consideration in this proceeding. Rule 12 of Order XXII of the Code says that “nothing in Rules 3, 4 and 8 (of Order XXI of the Code) shall apply to proceedings in execution of a decree or order. **OP(C)No.235/2011** 7 6. Respondents 6 and 7 have a contention that inter se dispute between some of the respondents in the execution petition as to who among them are the legal representatives of the deceased is not a question required to be decided by the executing court under Sec.47 of the Code. This contention has to be dismissed for the reason that in a suit for partition all persons entitled to a share are to be treated as plaintiffs, E.ANo.820 of 2004 (Ext.P4) is filed by respondents 6 and 7 claiming to be the legal representatives of deceased K.George Zacharia being his legal heirs, they should therefore be treated as claiming to be the decree holders and the dispute as to who is the legal representative has arisen between them (claiming to be the decree holders in respect of the share allotted to the deceased K.George Zacharia) and petitioner who is resisting E.A.No.830 of 2004 on the strength of the (disputed) Will. 7. Learned Senior Advocate for respondents 6 and 7 would contend that Rule 5 of Order XXII of the Code has to be read conjunctively with Rules 3 and 4 of the said Order and it has to be held that Rule 5 has no application to execution proceedings. Learned Senior Advocate submits that the question of abatement does not arise in the execution proceeding and hence Rule 5 (referred supra) has no application. **OP(C)No.235/2011** 8 8. I find myself unable to accept that argument. For, Rule 12 of Order XXII of the Code specifically states that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. What is excluded from application in execution proceeding in Order XXII, is only Rules 3, 4 and 8. In otherwords, Rule 5 of Order XXII of the Code is not excluded from its application in a proceeding in execution. Hence by implication from Rule 12, I must say that Rule 5 of Order XXII applies to execution proceeding as well. I draw support for that view from the decisions in **Indrajit Choubey and another v. Sitaram Agarwalla and others (AIR 1971 Calcutta 160)** and **Babu Rama Chaugule v. The Goodwill Bank Ltd., (AIR 1973 Bombay** **342)** . It was held by the Division Benches in the said cases that Rule 10 of Order XXII applies to execution proceedings as application of that Rule is not barred by Rule 12. The Calcutta High Court in **Indrajit Choubey** 's case held: “On an examination of the relevant statute also, namely, the Code of Civil Procedure, we are ourselves of the opinion that the said statutory provision (Order 22, Rule 10) will apply to execution proceedings, as it is not excluded by the excepting or excluding rule (Order 22, Rule 12)” **OP(C)No.235/2011** 9 The Bombay High Court in **Babu Rama Chaugule** 's case held in paragraph 8: “Order 22 generally provides for the effect that should follow upon death,marriage and insolvency of the parties but by Rule 12 a specific provision has been made that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. It, therefore, appears that the execution of a decree being in a way continuation of the suit, provisions of R.10 of Order 22 which are not expressly excluded by Rule 12, should apply to execution proceedings as well. In fact barring the three Rules which have been specifically excluded it appears that the entire Order will apply from the institution of the suit till its final disposal by the realisation of the decree or realisation becoming impossible by way of limitation etc. This has always been the view of this Court as will be clear from Krishnaji v. Bhikchand, AIR 1942 Bom 82. A Division Bench of this Court held in that case that whenever the Legislature intends that certain rules of the Code which in terms apply to suits should not apply to execution proceedings, it has been expressly so provided. Order 22, Rule 12 excludes the operation of Rules 3, 4 and 8 of Order 22 to execution **OP(C)No.235/2011** 10 proceedings. Order 22, R.10 therefore applies to execution proceedings as well. Both the learned Judges have written separate but concurrent orders. Wadia, J. in his order derives support from the observations of Full Bench of the Madras High Court in Muthiah Chettiar v. Govinddoss Krishnadoss, AIR 1921 Mad 599 (FB) and of the Calcutta High Court in Midnapore Zamindar Co. Ltd. v. Naresh Narain Roy, (1912) ILR 39 Cal.220. The learned Judges further observed that it was difficult to reconcile the opposite view with the provision of Rule 12 of the O.22. If the legislature had intended that R.10 should not apply to execution proceedings, that rule would have been mentioned in R.12 along with Rs.3, 4 and 8. The other learned Judge Wassoodev, J. says that it has been held in a series of decisions of this Court and other Courts (see (1902) LLR 26 Bom 109 and 31 Mad LJ 207 =(AIR 1917 Mad 409)) that an application in execution is a proceedings in a suit, or, in other words, execution is a continuation of the suit. In spite of the fact that execution is nothing but continuation of the suit, if the provisions of Order 22 were to be confined to suits only and cease to have any application to execution proceedings a distinction would have been made by the Legislature and Rule 12 would have been properly worded. There is **OP(C)No.235/2011** 11 therefore no doubt that on principles as well as the decisions of this Court the provisions of Order 22, Rule 10 apply to the Execution Proceedings.” Though it may be said that execution proceeding is not a continuation of the suit, it has to be said that execution is a proceeding connected with the suit. If Rule 10 can, as above held apply to execution proceeding by implication from Rule 12, there is no reason to exclude Rule 5 also from application in execution proceedings. Hence the 'court' referred to in Rule 5 of Order XXII can include the executing court as well. Therefore an enquiry as to who is the legal representative of the deceased K.George Zacharia by the executing court is not prohibited, and in view of Rule 5 of Order XXII, the executing court has to hold that enquiry and enter a finding. The mere fact that in the execution petition filed by defendants 2 to 4 in the year, 2003 seeking delivery of the share of their predecessor-in-interest, (the deceased Joseph Zacharia) respondents 6 and 7 were impleaded as legal heirs of the deceased K.George Zacharia is not sufficient to rule out an enquiry as above stated. 9. The next question is as to the nature and extent of the enquiry the executing court is required to conduct under Rule 5 of Order XXII of the Code. That question can be resolved by referring to the decisions in **OP(C)No.235/2011** 12 ## **Dashrath Rao Kate v. Brij Mohan Srivastava** and **Suresh Kumar** **Bansal v. Krishna Bansal and another** . True, those cases arose on the trial side but it was held that the result of enquiry under Rule 5 of Order XXII of the Code (there also, the claim was based on a disputed Will) will not operate as res judicata between legal heir/legal representative. But, so far as a third party is concerned, the enquiry under Rule 5 of Order XXII of the Code is final and binds him. In otherwords, so far as the persons claiming to be legal heir/legal representative is concerned, the finding in the enquiry under Rule 5 of Order XXII of the Code cannot be said to be final, nor will that finding operate as res judicata in a subsequent suit instituted by either of them to establish their claim as legal representative of the deceased. 10. In the light of what I have stated above,the executing court was not correct in entering a finding that an enquiry as to the genuineness of the Will is not required and that in the place of respondents 6 and 7, petitioner cannot be substituted as legal representative of the deceased K.George Zacharia. That finding must follow the enquiry which the executing court has already embarked upon, and the ultimate finding which the executing court has to arrive. Necessarily the executing court has to go into the question whether the Will in question is genuine or not and enter a finding on that question. The question whether who among respondents 6 and 7 and petitioner should **OP(C)No.235/2011** 13 represent the estate of the deceased K.George Zacharia would depend on that finding. I hasten to add that whatever finding the executing court enters on that question will not operate as res judicata in a subsequent suit which the unsuccessful party in E.A.No.820 of 2004 may institute to establish her/their title over the estate of the deceased K.George Zacharia. 11. On the question as to whether the Will in question is to be sent to the expert for opinion or not, true that in Ext.P7, judgment, the order of the executing court was set aside by this Court. But, that was in the light of the view this Court took that executing court has to primarily decide whether any enquiry is called for. Since respondents 6 and 7 are disputing the genuineness of the Will and the opinion of an expert in the matter is also relevant it may be appropriate that the disputed document is sent to the expert for opinion (subject to my observation earlier that any decision entered by the executing court as to the genuineness or otherwise of the Will, will not operate as res judicata among petitioner and respondents 6 and 7). If the executing court considers that the disputed Will has to be sent to the expert, it is open to the executing court to do so. Resultantly this Original Petition is allowed as follows: i. Ext.P9, order is set aside. The executing court is directed to proceed with the enquiry as to who among petitioner and respondents 6 and 7 is **OP(C)No.235/2011** 14 entitled to represent the estate of the deceased K. George Zacharia and enter a finding in that regard. ii. If the executing court considers it necessary, it will be open to the said court to send the disputed Will to an expert for opinion. iii. It is made clear that any finding that the executing court may make as regards genuineness of the Will, shall not operate as res judicata among petitioner and respondents 6 and 7 in a subsequent proceeding that the unsuccessful party may institute to establish her/their title over the share allotted to the deceased K.George Zacharia. **THOMAS P.JOSEPH, Judge.** ## **cks**