Summary
The Supreme Court restored the executing court’s order permitting the deceased decree-holder’s legatee to continue execution. The will had been supported by an attesting witness and its scribe, and no rival claimant sought to represent the estate. Determination of representation was summary and did not finally adjudicate rival succession rights. The High Court had improperly reassessed the evidence as an appellate court without satisfying the grounds for revision under Section 115 CPC.
Issues
- Whether the High Court could reverse the executing court’s determination of the decree-holder’s legal representative by reassessing the will evidence in revision.
Held
- The principles of Order XXII Rule 5 apply to determining representation in execution, although Order XXII addresses pending suits and its abatement provisions do not apply to execution. Determination of representation is summary and for conducting the proceeding, without finally deciding competing rights to the estate. (¶¶ 7, 8, 9, 10, 11, 12, 13)
- The executing court had accepted the will supported by its attesting witness and scribe, and the appellant was the sole claimant seeking to represent the deceased decree-holder. He was entitled to continue execution to its conclusion. (¶¶ 7, 14)
- A different view of the facts did not justify revisional interference. The High Court had not established an assumption of jurisdiction not vested, failure to exercise vested jurisdiction, or illegal or materially irregular exercise of jurisdiction; it had acted as a first appellate court. (¶ 15)
Result
Appeal allowed; High Court order set aside and executing court’s order restored.