HEMANT GUPTA,J - (1.) THE challenge in the present revision petition is to the order passed by the learned Executing Court on 14.12.2004 whereby the learned Executing Court framed issues in respect of inter se dispute between the legal heirs of the decree holder to seek execution of the decree passed in favour of the deceased Gurbax Singh.
(2.) ONE Gurbax Singh filed a suit for possession of the property in dispute which was decreed on 14.12.1984. The appeal against the said judgment and decree was accepted on 7.3.1987 by the then Additional District Judge, Barnala, but second appeal (R.S.A. 1486 of 1987) against the said judgment preferred by Gurbax Singh was accepted on 8.1.2003 and the decree passed by the learned trial Court was restored. Further appeal of the defendants before the Supreme Court was dismissed. It may be noticed that during the pendency of second appeal before this Court, Gopal Singh was impleaded as legal representative of deceased Gurbux Singh. After the decree as passed he sought execution of the said decree in which an application was filed by other legal heirs of deceased Gurbax Singh on the ground that Gopal Singh has sought impleadment on the basis of unregistered Will dated 6.12.1984, whereas the said Will is not executed by Gurbax Singh. Therefore, it was prayed that they be impleaded as party in the execution and the validity of the Will be examined before executing the decree against the judgment debtors. Learned counsel for the petitioner has argued that the dispute inter se legal heirs of Gurbax Singh cannot be adjudicated upon in execution proceedings against the judgment debtor. Any dispute inter se legal heirs of the decree holder is required to be determined in independent proceedings. The petitioner is one of the legal heirs of deceased Gurbax Singh, even in the absence of Will, is entitled to seek execution of the for the benefit of all legal heirs leaving the legal heirs to establish their rights in independent proceedings. Reference is made to Mrs. Annapam Prauthi and others v. Smt. Rajen Bal and others, A.I.R. 1988 S.C. 2041, wherein, in somewhat similar circumstances, it has been held that it would open to the applicant to claim her right under the Will in independent proceedings but such dispute cannot be adjudicated upon in a suit against the third person. Reference is also made to a Full Bench decision of this Court reported as Mohinder Kaur and another v. Piara Singh and others, A.I.R. 1981 Punjab and Haryana 130 wherein it has been held that a decision under Order 22, Rule 5 of the Code of Civil Procedure, 1908, is only directed to answer an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit. It was held to the following effect : "We are, therefore, of the opinion that in essence a decision under Order 22 Rule 5, Civil Procedure Code, is only directed to an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit ......"
(3.) ON the other hand, learned counsel for the respondents relies upon Single Bench judgment of this Court in Charanjit Singh and another v. Bharatinder Singh and others, 1987 RRR 508 (P&H) : (1987-1)91 P.L.R. 403, wherein all the legal heirs were impleaded to represent the estate of deceased while leaving the question about the genuineness and validity of the Will open. Reference is also made to another judgment of Supreme Court in Ashan Devi and another v. Phulwasi Devi and others, 2004(1) RCR(Civil) 38 : A.I.R. 2004 S.C. 511 to contend that all the objections in respect of execution of the decree are to be decided by the Executing Court and not in a separate suit and, therefore, this question is also required to be decided by the Executing Court.;