1. The question in this appeal is whether the finding about the plaintiff's adoption in a former execution proceeding operates as res judicata in a subsequent suit between the same parties.
2. The plaintiff brought the present suit to recover certain properties on the strength of an adoption made by a widow Shivubai to her husband Krishna who was their owner. After Shivubai's death, plaintiff's natural mother acting as his guardian had leased the suit lands to defendant No. 3 for ten years after the adoption. Defendant No. 3, however, in collusion with defendants. Nos. 1 and 2, made over possession to them alleging that he was the tenant of defendant No. 1. The plaintiff, therefore, filed the suit to recover the lands. Defendant No. 1, who was the contesting defendant, admitted that the lands. belonged to Krishna, and thereafter to his widow Shivubai. He, however, disputed the plaintiff's adoption on the ground that Shivubai was not in a sound mental condition so as to take the plaintiff in adoption. The question, therefore, was whether the plaintiff was adopted by Shivubai. On that point the plaintiff relied upon a decision in previous execution proceedings. A decree had been obtained by Shivubai against defendant No. 1, and she filed a darkhast to recover the costs awarded to her. During the pendency of the darkhast Shivubai died, and the present plaintiff applied to the executing Court for substitution as her legal representative on the strength of his adoption. Defendant No. 1 contested the adoption and opposed the application. The executing Court, after hearing evidence on the point of adoption, held that the plaintiff was validly adopted, and that he was, therefore, entitled to continue the execution proceedings. There was an appeal against that order and the finding was upheld.
3. The plaintiff's case is that although the properties in the present suit are different from the subject-matter of the execution proceedings, they are both the properties belonging to the estate of his deceased adoptive father, that the plaintiff's adoption was, therefore, a common point between the same parties in the execution proceedings as well as in the present suit and that the adoption having been held proved in the execution proceedings, the defence of the defendant in the present suit was barred by the principle of res judicata. Both the Courts have accepted the plaintiff's contention and decreed the suit on that ground. It is contended in this appeal that there is no bar of res judicata because the decision of the executing Court on the question as to whether a particular person was or was not the legal representative of a deceased party cannot operate as res judicata in a subsequent suit between the same parties.
4. Under Sub-section (3) of Section 47 of the Civil Procedure Code 'where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.' There is a distinction between a dispute between two rival heirs of a deceased party in which the other party is not interested and a dispute between a person claiming to be the heir of one party and the other party who disputes the right of that person as such heir. It has been held by our Court in Venubai v. Damodar : AIR1933Bom396 that Sub-section (3) of Section 47 does not apply when the dispute is between rival representatives of one party, the other party having disclaimed any interest in the question. That Sub-section applies where there is a dispute between one party and a representative of another party about the latter's right to represent the deceased party's estate. In the present case there was a dispute between the plaintiff as heir of Shivu-bai on the one hand and defendant No. 1, who was the judgment-debtor, on the other. It was therefore a question under Section 47 which the executing Court had to decide.
5. It has been recently held by our Court in Shamrao v. Shantaram (1934) 37 Bom. L.R. 123 that a decision arrived at in execution proceedings operates as res judicata in a subsequent suit between the same parties. It is, however, contended on be-half of the appellant that the principle of this latter decision would not apply where the question was about a particular person being the legal representative of a deceased party. It is urged that that question falls really under Order XXII, Rule 5, and not under Section 47, and that an order under Order XXII, Rule 5, does not operate as res judicata as held in Antu Rai v. Ram Kinkar Rai (1935) I.L.R. 58 All. 734. In my opinion, it is doubtful whether Order XXII, Rule 5, would apply to execution proceedings in view of the fact that Order XXII, Rules 3 and 4, on which Rule 5 is dependent, do not apply to execution proceedings as laid down in Rule 12. Therefore, the present case is governed by Section 47, Sub-section (3), and not by Order XXII, Rule 5. The decisions relied upon on behalf of the appellant in Antu Rai v. Ram Kinkar Rai, Chiragh Din v. Dilawar Khan A.I.R.  Lah. 485, and Zalim v. Tirlochan Prasad . relate to the applicability of the principle of res judicata to orders under Order XXII, Rule 5, passed in suits and not in execution proceedings.
6. In the present case the order was passed by the executing Court after hearing both sides as to whether the plaintiff was entitled to continue the darkhast on the strength of his adoption, and it was held on evidence that he was adopted. I do not see why that decision should not operate as res judicata in the present suit between the same parties with reference to a part of the same estate. The principle of res judicata would apply even though the subject-matter of the two proceedings may be different provided the issue is the same. Vide Rajah of Pittapur v. Sri Rajah Row Buchi Sittaya Garu , which was a case of adoption. In my opinion, therefore, the defendant's contention that the plaintiff was not the validly adopted son of Shivubai is barred by res judicata.
7. The decree of the lower appellate Court is, therefore, correct and the appeal is dismissed with costs.