Punjab-Haryana High Court
Aggarwal Textiles vs Kusum Lata And Ors. on 26 April, 1991
Equivalent citations: (1992)101PLR125
JUDGMENT
G.C. Mital, A.C.J.
1. M/s. Aggarwal Tex tiles filed a suit for recovery of Rs. 52,925/- in the City Civil Court at Ahmedabad, against firm Raunak Ram Bir Chand and impleaded Bir Chand and his son Ramesh Chand partners of the firm. The suit was decreed.
2. When the decree-holder took out execution, Kusum Lata filed an objection petition raising objection to the attachment of property on the ground that her father-in-law Bir Chand had bequeathed his petty sought to be sold in execution to her on the basis of a Will alleged to have been executed by Bir Chand, although her husband Ramesh Chand was one of the judgment-debtors, being partner of the. firm already a party to the suit. Besides Ramesh Chand Bir Chand had two more children, namely, Shiv Kumari and Kamia Dev. Since Bir Chand has died during the pendency of the proceedings in the main suit, the two daughters were also impleaded as legal representatives as Ramesh Chand was already a party to the suit.
3. On the application of Kusum Lata, the executing Court has framed an issue about the genuiness of the Will and the decree-holder has come up in revision against the said order.
4. Shri Hemant Kumar, Advocate, appearing for the decree-holder urges that the decree-holder is to follow the estate of the firm and the judgment-debtors and the fact hardly matters whether there. are three legal representatives or four or which of them is legal representatives. That inter se dispute between the legal representatives has to be decided in separate proceedings as any determination under Order 22 Rule 5 of the Code of Civil Procedure docs not operate as res judicata between the rival legal representatives and, therefore, the proper course for the executing Court was to bring on. record Kusum Lata also as one of the legal representatives, leaving the legal representatives to get their inter se dispute settled in separate suit.
5. In view of the Full Bench judgment of this Court in Mohinder Kaur v. Paira Singh, A.I.R. 1981 Punj 130 the counsel for the decree-holder is right. I wish if this judgment was brought to the notice of the executing Court by either side and this delay would have been avoided.
6. Accordingly, the revision is allowed. The order of the executing Court framing issue is set aside with a direction to the executing Court to implead Kusum Lata also as a legal representative to contenst the execution proceedings. The question as to who is the legal representative is left open to be decided in a separate suit between the contesting legal representatives.
7. The execution Court is directed to proceed with the execution expediously. The decree-holder is directed to appear in the executing Court on 23-5-1991.
8. It may be noted that inspite of service, the respondents have not appeared and, therefore, I proceeded to decide the revision petition exparte.