IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 11702 of 2009(O) -------------------------- OS.273/1995 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- 1. K.ZACHARIA ZACHARIA, S/O.LATE K.J.ZACHARIA, KARINGATTIL HOUSE, STATION CROSS ROAD, KOCHI-35. 2. MARY ABRAHAM, W/O.C.T.ABRAHAM, CHAKKALAYIL HOUSE, ARTHOTTY JUNCTION, KOTTAYAM. 3. THANKAMMA CHERIAN, W/O.P.C.CHERIAN, J.P.NAGAR, STAGE-II, MUTTOOR JUNCTION, THIRUVALLA. 4. K.SUSAMMA ZACHARIA, D/O.LATE K.J.ZACHARIA, KARINGATTIL HOUSE, STADIUM CROSS ROAD, KOCHI-35. BY ADV. SRI.V.L.SHENOY SRI.L.JAYAWANTH RESPONDENT(S): --------------- 1. JOLLY CHERIAN, W/O.LATE K.GEORGE ZACHARIA, RESIDING AT SHALEM, VAYALLIL ROAD, THIRUVANKULAM P.O. 682 305. 2. SUSAN K.GOERGE, D/O.LATE K.GEORGE ZACHARIA, RESIDING AT SHALEM, VAYALLIL ROAD, THIRUVANKULAM P.O. 682 305. 3. K.SUSAN JOSEPH, D/O.LATE K.JOSEPH ZACHARIA, LILLY DALE, UNDAPIVU, PODIYADI P.O., PATHANAMTHITTA. WPC.11702/09 4. K.SOUMINI JOSEPH, D/O.LATE K.JOSEPH ZACHARIA, LILLY DALE, UNDAPIVU, PODIYADI P.O., PATHANAMTHITTA. ADV. SRI.N.ASHOK KUMAR FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.11702/09 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE EXECUTION PETITION E.P.NO.630/2003 IN O.S.NO.273/1995 OF THE SUB COURT, ERNAKULAM DATED 6.11.2003. EXT.P2: COPY OF THE PETITION E.A.NO.1053/2004 IN E.P.NO.630/2003 IN O.S.NO.273/1995 OF SUB COURT, ERNAKULAM DATED 17.8.2004 EXT.P3: COPY OF THE PETITION E.A.NO.820/2005 IN E.P.NO.630/2003 IN O.S.273/1995 OF SUB COURT, ERNAKULAM. EXT.P4: COPY OF THE DELIVERY PROCEEDINGS DATED 15.3.2006. EXT.P5: COPY OF THE ORDER DATED 7.6.2006 IN E.A.NO.371/2006 IN E.P.NO.630/2003 IN O.S.NO.273/1995 OF SUB COURT, ERNAKULAM. EXT.P6: COPY OF THE ORDER DATED 7.6.2006 IN E.A.NO.370/2006 IN E.P.NO.630/2003 IN O.S.NO.273/1995 OF SUB COURT, ERNAKULAM. EXT.P7: COPY OF THE JUDGMENT DATED 16.10.2006 IN W.P.(C).27177/2006 OF HIGH COURT OF KERALA. EXT.P8: COPY OF THE PROOF AFFIDAVIT FILED BY THE 4TH PETITIONER DATED 27.9.2007. EXT.P9: COPY OF THE ADDL. OBJECTION FILED BY THE 4TH PETITIONER DATED 2.6.2007. EXT.P10: COPY OF ARGUMENT NOTES FILED BY THE 1ST PETITIONER DATED 3.10.2008. EXT.P11: COPY OF ARGUMENT NOTES FILED BY THE RESPONDENTS 1 AND 2 HEREIN DATED 27.8.2008. EXT.P12: COPY OF ORDER DATED 20.2.2009 IN E.A.NO.820/2004 IN E.P.NO.630/2003 IN O.S.NO.273/1995 ON THE FILE OF SUB COURT, ERNAKULAM. RESPONDENTS EXHBITS: EXT.R1(A): COPY OF THE PRELIMINARY JUDGMENT DATED 15.11.1995 OF THE II. ADDL. SUB COURT, ERNAKULAM. EXT.R1(B): COPY OF THE FINAL JUDGMENT IN I.A.NO.986/98 DATED 13.9.2002 OF THE IIND ADDL. SUB COURT, ERNAKULAM. EXT.R1(C): COPY OF THE DOCUMENT DATED 27.1.2001. EXT.R1(D): COPY OF THE ARGUMENT NOTE DATED 6.10.2005. WPC.11702/09 EXT.R1(E): COPY OF THE PLAINT IN O.S.NO.273/95. EXT.R1(F): COPY OF THE PETITION DATED 15.6.2009 FILED BY THE PETITIONER BEFORE THE EXECUTION COURT. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.11702 OF 2009 (O) ----------------------------------- Dated this the 26th day of June, 2009 J U D G M E N T The writ petition is filed by the respondents 1, 2, 4 and 5 in E.P.No.630/2003 in O.S.No.273/1995 on the file of the Sub Court, Ernakulam. The decree passed in the above suit, which was one for partition, allotting specific shares in the suit property to the sharers is being executed in the aforesaid execution petition. One among the plaintiffs in the suit namely, K.George Zacharia, who was also allotted a specific share, passed away after the passing of the final decree. His widow and daughter moved an application as legal heirs for delivery of the share allotted to him under the decree, and they are the 1st and 2nd respondents in the writ petition. The other two respondents, 3 and 4 in the writ petition, are co-plaintiffs in the suit and they have also been allotted shares under the decree. The claim of the 1st and 2nd respondents, widow and daughter of late K.George Zacharia, for getting WPC.11702/09 2 delivery of the property allotted to the share of Zacharia in their favour, is being resisted by the 4th petitioner in the writ petition, who was also a party to the suit, contending that late K.George Zacharia had executed a will bequeathing all his assets in her favour, and so much so, she is the sole legatee entitled to the share allotted to him under the suit. Petitioners 1 to 3 in the petition are some of the defendants in the suit, and respondents in the execution petition. They supported the claim of the 4th petitioner and now in the writ petition they have joined with her to impeach the correctness of an order passed by the court below with respect to the will purported to have been executed by K.George Zacharia. An enquiry on the genuineness of the will, which is an unregistered one, was proceeded by the execution court, in which, the 1st petitioner herein, the brother of late K.George Zacharia, was also examined. The learned Sub Judge, after considering the materials placed in that enquiry, passed an order directing for sending over the document for an expert opinion to one Sri.Khan Shahib, who is stated to be a Finger Print and Hand writing expert. The 4th petitioner/5th respondent in the proceedings before the court below, who propounded the will WPC.11702/09 3 was directed to deposit an amount of Rs.3,500/- towards expert's fee as demand draft drawn in the name of the expert. Ext.P12 is the copy of that order. Correctness and propriety of Ext.P12 order passed by the learned Sub Judge is impeached by the petitioners invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. Having regard to the facts and circumstances presented and the submissions made at the time of hearing with reference to the materials produced in the petition and perusing the impugned order passed by the learned Sub Judge, I requested the learned counsel for the petitioner to enlighten me whether the dispute presented before the execution court as to who is the legal heir of a deceased decree holder, that too, in a decree passed in a suit for partition allotting specific shares to that decree holder in which the other judgment debtor could not have any interest or raise any challenge, is a question falling for determination before the execution court under Section 47 of the CPC. The learned counsel for the petitioners relying on WPC.11702/09 4 Parbati Debi and others v. Mahadeo Prasad Tibrewalla (AIR 1979 SC 1915) and Gopaldas Mohata v. Fulchand (1997 (1) KLT Short note 40), submitted that if a question as to who is the legal representative of the decree holder is raised before the executing court, that court is bound in law to resolve that dispute under Section 47 of the CPC. 3. The question, thus, arising for consideration is whether a dispute regarding the status of a representative of a decree holder in a suit for partition to whom specific share was allotted, is a question arising for determination by the executing court for execution, discharge or satisfaction of the decree. Section 47 of the CPC mandates that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of decree, have to be determined by the court executing the decree and not by a separate suit. Sub section (3) of Section 47 of CPC provides further that if a question arises as to whether any person or is not a representative of a party, such questions shall, for the purposes of this section, be determined by the Court. It is WPC.11702/09 5 crystal clear that all questions arising as to whether any person is the representative of the party or not, are not covered by Sub section (3) of Section 47 of CPC, but, only if that question, a dispute as to who is the representative of a party, is required to be determined by the court for the purpose of the section relating to the execution, discharge or satisfaction of the decree. Purpose of the section is determination by the executing court questions relating to the execution, discharge or satisfaction of the decree. Disputes between the rival decree holders seeking attachment of the property or setting up claims against each other in the distribution of assets or between joint decree holders inter se are not questions within the section for determination by the execution court unless that affect the judgment debtors. The words of Sub section (3) of Section 47 of CPC makes it clear that the determination is to be for the purposes of that Section. Where the dispute between two persons claiming to be a representative of one party arises on the death of that party, the dispute is not one between the two parties to the suit or between a representative of one party on the one hand and the other party to the suit on the other hand, and hence it WPC.11702/09 6 would not be a dispute covered under the scope of Section 47 (1) or Section 47 (3) of CPC. Once a final decree in a suit for partition is passed allotting specific shares to each sharer, the other sharers who are shown as respondents in an application moved by a decree holder for getting delivery of the property allotted to him through a court, can no way be interested in a dispute as to who is/are the legal heirs of that decree holder if he had passed away after filing such application. It is purely a dispute between the persons who claim the status of the legal heir of the deceased decree holder and it has nothing to do with the determination of any question relating to the execution, discharge or satisfaction of the decree as between the parties to the suit. A dispute between two persons claiming to be legal representative of the decree holder in which the judgment debtor is not interested would not be a dispute between parties to the suit or with any party to the suit at all and hence it would not be covered under Section 47 of CPC. A dispute about the right of representation as the legal heir of a decree holder in which the judgment debtors are not interested is not relating to a dispute between the parties or that even one of the parties to the suit, but between WPC.11702/09 7 two set of persons claiming to represent one of the parties namely, the decree holder. Merely because the 4th petitioner was a party to the suit, neither she nor the other parties, including petitioners 1 to 3 cannot claim that the dispute presented over the right of representation by the 4th petitioner on the basis of a will purported to have been executed by late K.George Zacharia resisting the claim of his widow and daughter, is a question arising for determination between the parties relating to the execution, discharge or satisfaction of the decree. 4. In Nand Rani v. Civil Judge, Junior Division, Pilibhit (AIR 2004 Allahabad 307), the High court of Allahabad has held that a dispute between two persons claiming to be a legal representative of the decree holder in which the judgment debtor is not interested is not a question arising for determination under Section 47 of the CPC. I am fully in agreement with that proposition. 5. In a partition suit, the defendants having joint ownership over the properties are eo nomine plaintiffs and WPC.11702/09 8 once specific division of ownership and separate allotment is made under the decree, they are decree holders entitled to get delivery of such property and they cannot be equated with the status of a judgment debtor when execution is proceeded under that decree. So, even if some of the parties in that suit, after passing of the decree, show active interest in the question as to who has the right of representation over the property allotted to late K.George Zacharia it cannot be considered as the interest of a judgment debtor with respect to any question relating to the execution, discharge or satisfaction of the decree. The right of representation claimed by the 4th petitioner, a party to the suit on the basis of a will purported to have been executed by late K.George Zacharia to challenge the status of such representation by his widow and daughter, the 1st and 2nd respondents in the writ petition, is not a matter arising between the parties relating to the execution, discharge or satisfaction of the decree. 6. The learned counsel for the petitioners has relied on a decision of the apex court in Gopaldas Mohata v. Fulchand (1997 (1) KLT (SN) 40), wherein it has been WPC.11702/09 9 observed thus: “Even a transferee pendente lite is representative of his transferor within the meaning of Sub section 3 of Section 47. One who claims to be a transferee by operation of law would as well be a representative and if his claim to be a representative is disputed either by the opposite party or by the party under whom he claims, such dispute must also be resolved by the executing court itself. The word “representative” used in Section 47 is obviously much wider than the words “legal representative” as used in Section 50 of the CPC.” The apex court in the above decision has held that if a person approaches the execution court claiming that he is a representative of the decree holder's interest in the decree and if that claim is disputed by the decree holder, the execution court has to resolve it for proceeding with the execution of the decree. Such a question, it was stated, is one falling within the sweep of Section 47 of the CPC. The decision is not of any assistance to the present petitioners as the question involved therein was whether the transferee was a representative of a party decree holder in the proceedings or not. The dispute was with the party to the proceedings itself, WPC.11702/09 10 but, in the present case, the dispute is about the legal representative of a deceased party. Though the petitioners are parties to the proceedings, it cannot be stated that the claim raised by the 4th petitioner as a legal representative of late K.George Zacharia, one of the parties in the suit, challenging the status of his widow and daughter to represent his estate is a dispute between the parties to the suit. The apex court in the above decision was not considering a dispute regarding the legal representatives of the deceased decree holder and on the other hand, has specifically taken note of a difference between the word “representative” used in Section 47 and 'legal representative' used in Section 50 of CPC. Section 47 of CPC does not apply to a case where a dispute is raised between persons claiming a right to represent the estate of a deceased party. 7. The situation on hand may pose a question whether on the death of one or other party in the execution proceedings if a dispute arises as to who is his legal representative is the execution court debarred from examining that question for the reason that it is not one arising under WPC.11702/09 11 Section 47 of the CPC. Of course not, as in such a situation, Section 50 of the CPC would be applicable. It has to be taken note of that Order XXII Rule 12 of CPC stipulates that only rules 3, 4 and 8 of that order, that alone, will not apply to execution proceedings. In that case, there can be substitution in execution proceedings invoking Order XXII Rule 5 of CPC on the death of a party in the proceedings. There is nothing in the Code to interdict the applicability of Order XXII Rule 5 of CPC in execution proceedings. However, it is to be noted an enquiry under Order XXII Rule 5 CPC for the purpose of determining the legal heir of a deceased party can be only summary. An execution court cannot permit or envisage elaborate proceedings like a civil suit to determine the question as to who is the legal representative to give a conclusive and binding decision in the proceedings since it is not determining any right to succession. 8. What is noticeable from the facts and circumstances presented in the case is that the widow and daughter of late K.George Zacharia, the decree holder, had already been substituted to represent his estate by entertaining their WPC.11702/09 12 application for delivery. The 4th petitioner has not challenged the substitution as such, but contend that as a legatee under a will executed by late K.George Zacharia, she alone is competent to get the property alloted to him under the decree. The execution petition E.P.No.630/2003 was once dismissed, but, later restored and taken back on file. Even before the dismissal of the execution petition, it is seen from Exts.P5 and P6 orders produced by the petitioners, the widow and daughter had been brought on record, as substituted in the place of late K.George Zacharia. The 1st petitioner, brother of late K.George Zacharia, had challenged the restoration of the E.P. by way of a writ petition before this Court contending that no notice was given to him before ordering its restoration. That writ petition was disposed by Ext.P7 judgment permitting him to raise all objections before the execution court. Ext.P7 judgment was passed by this Court on 16.10.2006. It is seen that the 4th petitioner, sister of late K.George Zacharia, moved Ext.P8 application for her substitution as the legal representative of late K.George Zacharia, after filing an additional objection dated 2.6.2007 contending that late K.George Zacharia had bequeathed his 1/6 th undivided share in WPC.11702/09 13 the decree schedule property allotted to him in her favour under a will dated 27.1.2001 executed by him. Ext.P8 application is dated 27.9.2007. In the execution proceedings, after their substitution in the place of late K.George Zacharia, his widow and daughter, 1st and 2nd respondents in the present petition, had filed an application in August, 2004 to issue proceedings for execution of the decree by deputing Amin and a surveyor to give delivery of the property to them which had been allotted to late K.George Zacharia under the decree. The will on which the claim is raised by the 4th petitioner, though such testament is stated to have been executed in 2001, came to light only in 2007. Whatever be the reason thereof it was after an unsuccessful attempt by the 1st petitioner herein, the brother of late K.George Zacharia, who has now joined the 4th petitioner in the present petition, in challenging the restoration of the execution petition which was dismissed for default. Evidently, long after the substitution of the 1st and 2nd respondents, widow and daughter, to represent late K.George Zacharia, the claim raised by them is resisted by the 4th petitioner on the basis of a will purported to have been executed by the deceased. The circumstances WPC.11702/09 14 aforementioned presented in the case deserve to be taken note by the execution court in forming a conclusion whether any substitution of the present petitioner on the basis of the will produced as legal representatives of late K.George Zacharia, replacing his widow and daughter already substituted on the record as his legal representatives, arise for consideration and that has to be formed after affording an opportunity to the parties to the proceedings of being heard, and if the court arrives at a conclusion that an enquiry to determine as to who among the contestants, the petitioner or the widow and daughter is to be substituted as the legal representative is required, needless to point out, it can only be of a summary nature and cannot be a full fledged adjudication as a civil suit to determine who is entitled to inherit the properties of late K.George Zacharia by succession. 9. Ext.P12 order is set aside directing the court below to decide the question whether any enquiry on the substitution of the legal representatives of late K.George Zacharia, after such substitution having been made with his widow and daughter already brought on record in the execution WPC.11702/09 15 proceedings is warranted, and if so found, to determine that question in the light of the directions and observations given under this judgment and in accordance with law. The parties are directed to appear before the court below on 15.7.2009 and the execution court is directed to decide the question covered by the substitution expeditiously and then proceed with the completion of the execution proceedings without delay. Writ petition is disposed with the above observations. S.S.SATHEESACHANDRAN JUDGE prp