JUDGMENT S.N. Srivastava, J.
1. Heard Sri Satya Prakash, learned counsel for the petitioner and Sri Chandra Shekhar, holding brief of Sri G. N. Verma, learned counsel for the respondent.
2. A Suit No. 15 of 1975 was filed by Tej Bahadur Singh, for cancellation of sale deed dated 18.1.1973 alleged to have been executed by him in favour of Ram Prasad and Birbal. Suit was dismissed on 30.7,1980. A Civil Appeal No, 164 of 1980 was preferred by plaintiff against the said decree of the trial court.
3. During the pendency of the civil appeal, TeJ Bahadur Singh died. O.P. No. 2 Shamsher Bahadur Singh, the real brother of Tej Bahadur Singh filed an application for substitution claiming him as sole heir and legal representative. An application was also filed by the petitioner for substituting her in place of Tej Bahadur Singh on the basis of a Will dated 20.1.1981. The petitioner's case was that Tej Bahadur Singh executed Will in her favour who is real sister.
4. The District Judge, Mainpuri, after considering the case of the parties allowed the application filed by O.P. No. 2 and rejected the application of the petitioner.
5. The main ground on which the application of the petitioner was rejected was that she did not obtain probate as required under Section 213 of Indian Succession Act in respect of Will, she relied. The brother Shamsher Bahadur Singh was substituted being a natural successor in line of successor under law.
6. Learned counsel for the petitioner contends that the substitution application was rightly filed and probate under Section 213 of the Indian Succession Act does not come in the way of substitution in an appeal for the purpose of substituting the legal representative of deceased. He relied on 1969 ALJ 945.
7. Learned counsel for the respondent argued that order passed under Order XXII, Rule 5 of C.P.C. does not decide any title and the order is passed to continue the suit and as such no writ petition lies.
8. Having heard learned counsel for the parties and rival arguments raised by them. Perused the order and considered the order passed by the District Judge.
9. Order XXII, Rule 5 of C.P.C. Is quoted as under :
"Determination of question as to legal representative.--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 :
Provided that where such question arises before an appellate court, that court may, before determining the question, direct any subordinate court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the appellate court may take the same into consideration in determining the question."
10. A decision made by a court in exercise of the Order XXII, Rule 5 of the C.P.C. on summary enquiry, does not decide any title or it does not create any bar of res judicata. The order is always subject to suit.
11. In case the petitioner files a suit to establish her right on the basis of Will, the order passed under Order XXII, Rule 5, C.P.C. does not create either bar of res judicata or any effect to her title.
12. The order passed by the Court in exercise of the power under Order XXII, Rule 5 of the C.P.C. Is to continue the litigation. Petitioner, if feels aggrieved may in appropriate suit or proceedings establish the execution or attestation of Will relied upon by her.
13. My view is supported by a Division Bench judgment in Rom Kalap v. Banshi Dhar, 1958 All 573. Para 5 of this judgment is being quoted :
"The order passed under Order XXII, Rule 5 of the Code of Civil Procedure involved a summary enquiry as to who should be substituted in place of the deceased in the appeal during the pendency of which he died. A decision that was made under Order XXII, Rule 5 of the C.P.C. would not therefore, constitute res judicata on the question which was expressly raised in the present suit as to whether the Will had been properly executed and attested and on which question no evidence whatsoever had been produced on behalf of the plaintiff.
14. Ruling relied upon by the petitioner does not help him and this writ petition may be decided on the short question that the impugned order does not create any bar of res Judicata. It is open to her to establish her right based on Will in appropriate suit or proceeding.
15. In view of the facts and circumstances, the writ petition is liable to be dismissed.
16. The writ petition is decided accordingly.
17. No order as to costs.