1. Sahib Dayal and others filed the suit for declaration and for the grant of the permanent injunction on July 20, 1982. During the pendency of the said suit Sahib Dayal, one of the plaintiffs died on Sept. 28, 1982. Pearey Lal, respondent moved the application on Dec. 21, 1983, for bringing him on record as his legal representative. It was alleged therein that Sahib Dayal Deceased, Executed and got registered the will dated May 2, 1978 in respect of the land in suit, in his favour. Therefore, he was his legal representative and was, thus entitled to be brought on the record as such. The application was contested on behalf of the defendants on the plea inter alia that pearey Lal. respondent was not his legal heir, nor any will was executed by him in his favour as alleged. The trial Court framed the necessary issue as to whether pearey Lal was the legal heir of deceased Sahib Dayal on the basis of the will dt. May 2, 1978, as alleged. Ultimately, it found that the execution of the will in favor of the respondent by the said Sahib Dayal had not been proved and, thus, pearey Lal, applicant, did not become the legal heir of the deceased, as claimed. Consequently the application filed by him was dismissed vide order dt. Oct. 6, 1984. Dissatisfied with the same, Pearey Lal filed appeal. Therein, a preliminary objection was raised on behalf of the defendants that the order passed by the trial Court was under O. XXII, R. 5 Civil P. C. thereinafter called the code) and as such, no appeal was maintainable against the same. The only remedy available to him was to move this Court by way of a revision petition. On behalf of Pearey Lal It was argued that the order by the trial Court has been passed under O.XXII, R. 10 of the code and as such, an appeal thereto was envisaged under O. XLIII, R. 1 of the Code. The learned lower appellate Court came to the conclusion that the order of the trial Court will be deemed to have been passed under O. XXII, R. 10 of the Code and therefore, the appeal was maintainable. On merits, it reversed the finding of the trial Court and came to the conclusion that the execution of the will was duly proved and pearey Lal was entitled to be impleaded as the legal representation of Sahib Dayal, deceased. Dissatisfied with the same, the defendant, has filed this revision petition in this Court.
2. The main controversy between the parties in this revision petition is as to whether the order of the trial Court dismissing the application of Pearey Lal for impleading him as the legal representative of Sahib Dayal, deceased, was appealable or not.
3. It is not disputed that if the said order is held to have been passed under O. XXII, R. 5 of the Code, then no appeal was maintainable against the same but if the said order is held to be under O. XXII, R. 10 then the appeal therefrom was competent. Order XXII, R. 3 of the Code, provides for the procedure for an application for bringing on record the legal representatives incase of death of one of several plaintiffs or of sole plaintiff. According to the said provision where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Rule 5 of the said Order provides for the determination of questions as to legal representative. The term 'legal representative' is defined under S. 2(11) of the Code, which is to the following effect,--
' 'legal representative' mean a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.'
From the averment made in the application dt. Dec. 21, 1983, filed by Pearey Lal, it is clear that he claimed himself to be the legal representative of Sahib Dayal, deceased, by virtue of the will in his favour executed by him on May 2, 1978. On these facts, it could not be successfully argued on behalf of Pearey Lal, respondent, that this application was decided under O. XXII, R. 10 of the Code. Rule 10(1) of the said Order reads,--
'10. Procedure incase of assignment before final order in suit. (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.'
The abovesaid rule contemplates the assignment, creation or devolution of any interest during 'the pendency of a suit' and it is clear that if a case is covered under O. XXII. R. 3 of the Code, then R. 10 thereof would not be attracted. Rule 10 of O. XXII applies to an altogether different situation and to persons other than legal representative. Admittedly, in the present case, there was no assignment, creation of devolution of any interest during the pendency of the suit in favour of Pearey Lal, respondent. Rather he claimed himself to be the legal representative of Sahib Dayal, deceased. In this view of the matter, the view taken by the lower appellate Court was wrong and misconceived. The order of the trial Court could not be said to have been passed under O. XXII, R. 10 of the Code; rather it was passed under O. XXII, R. 5 and therefore, no appeal against the same was maintainable.
4. For the reasons recorded above, this revision petition succeeds and is allowed. The impugned order of the lower appellate Court is set aside and that of the trial court dismissing the application of the respondent for bringing him on record as the legal representative of Sahib Dayal, deceased, is restored with costs. The parties are directed to appear in the trial Court on 10th Oct. 1985.
5. Revision allowed.