I.S. Tiwana, J.
1. The following question of law has been referred to this Full bench for decision:--
'Whether, in no case a decision under Order 22, Rule 5, Civil Procedure Code, would operate as res judicata between the same parties or their successors in interest or their privies in subsequent proceedings even when the contested issue in the earlier proceedings had been decided by the Court on merits after affording fair and due opportunity to the contesting parties to lead evidence and of hearing?'
A few skeletal facts necessary to unfold the basic legal contention only are noticed as under.
2. The present plaintiff-appellant (hereinafter referred to as the plaintiff) along with their mother Smt. Amar Kaur brought a suit on July 1, 1958 for maintenance against their grandfather, Ishar Singh with the allegation that since their father Milkhi was unheard of for the last more than thirteen years and was presumed to be dead, the defendant Ishar Singh was under a legal obligation to maintain them from the property in his hands. The said suit was decreed on August 30, 1961 by sub Judge 1st class, Garhshankar before an appeal could be filed against that decree Ishar Singh, judgment-debtor died. The present defendant claiming themselves to be the legal representatives of Ishar Singh deceased on the basis of a will, filed an appeal in this Court against the said decree. As a question with regard to the maintainability of the said appeal by the defendant arose, the matter was referred by this Court to the trial Court for a report on the point as to whether the defendant were the legal representative of Ishar Singh deceased judgment-debtor. The said Court, after recording evidence with regard to the genuineness of the will, reported in favour of the defendants. This report was accepted by this court with the following order:-
'In view of the report of the Court below pursuant to my order dated 19th July, 1962 Piara Singh and Sucha Singh Petitioners are directed to be impleaded as legal representatives of the deceased Ishar Singh and consequently permitted to file the appeal, The appeal has already been filed and appropriate orders ready been filed and appropriate orders have been made regarding its admission etc.
As a result of this order, the appeal preferred by the defendant was held to be maintainable though ultimately the same was dismissed by this Court on April 29, 1971 with certain modification in the decree on account of death of Smt. Amar Kaur during the pendency of the appeal and the plaintiffs-grant daughters of Ishar Singh--having joined government service. Subsequently the plaintiff filed the present suit against the defendants the for declaration and possession of the property left by Ishar Singh deceased on the basis of their bring the sole heirs to the basis of their being the sole heirs to him. A specific Challenge to the will alleged to have been executed by the deceased in favour of the defendants, was also leveled. The pleadings of the parties necessitated the framing of the following issues :-
1. Whether Ishar Singh deceased had executed a valid will in favour of Piara Singh ad Sucha Singh on 28-12-1960?O. P. D.
2. Whether the will dated 28-12-1960 is the result of undue influence and fraud as alleged?O. P. D.
3. Whether the plaintiffs are extopped from challenging the validity of the will as alleged and the matter is res judicata between them. O. P. D.
The above-noted question of law posed before us, pertains to issue No. 3 only.
3. The learned Single Judge before whom this R. S. A. came up for final hearing felt that the inflexible and absolute rule laid down by a string of decisions of Lahore high Court and this Court that a decision under Order 22, Rule 5, Civil Procedure Code, would in no case operate as res judicata between the parties or their successors-in-interest in a subsequent suit required reconsideration in view of the newly added explanation 7 and 8 to Section 11 of the Civil Procedure Code and the decision of their Lordships of the Supreme court in Union of India v. Nanak Singh, AIR 1968 SC 1370. In the said case, the learned Judges of the Supreme Court while holding that a decision of the Court on the writ side deciding a particular issue involved therein would operate as res judicata regarding the said point raised subsequently in a civil suit-observed as follows:-
'Provisions of Section 11, Civil Procedure Code are not exclusive with respect to an earlier decision operating as re judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide, it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly should be competent to decide the subsequent suit or that the former proceeding and the subsequent suit should have the same subject matter. There is no good reason to preclude such decision on matters in controversy in writ proceedings under Article 226 or Article 32 of the constitution from operating as res judicata in subsequent regular suit on the same matters in controversy between the same parties and thus to give limited effect to the principles of the finality of decision after full contest. AIR 1965 SC 1153, relied on.'
4. After noticing the facts of that case, their Lordship held that the suit was so barred as the judgment in the previous case operated by express decision as res judicata. It is on the basis of these observation that Mr. B. S. Khoji learned counsel for the defendant contends, that the decision of the Lahore High Court reported as Chiragh Din v. Dhlawar Khan AIR 1934 Lah 465: Mahomed Khan v. Jan Mohammad, AIR 1939 Lah 580 and Daular Ram v. Mt. Meero, AIR 1941 Lah 142, and also of this Court in Mangat v. Sugja, 1979 Rev LR 129(AIR 1979 Punj & Har 194), laying down that a decision under Order 22, Rule, 5, Civil Procedure Code, would not operate as res judicata in a subsequent suit where an issue with regard to the succession or heriship of a deceased party in the earlier proceedings, is raised are no more a good law. On the other hand, Mr. R. S. Bindra, learned counsel for the plaintiffs forcefully maintains that (I) a decision under Order 22, Rule 5 Civil Procedure Code, always relates to a collateral issue or an issue which incidentally crops up in a litigation when a party to that litigation dies and in the very nature of things such a decision is rendered only with a view to ensuring orderly conduct of the proceedings as a result of a summary enquiry and such a decision can never operate as res judicata in a subsequent suit where the direct question of succession or heriship to the said deceased party arise, and (ii) such a decision being not a decision in a suit, would not operate as res judiata in a subsequent suit in view of the provision of Section 11 of the Civil Procedure Code, What Mr. Bindra Submits is that in the context of suits it is only the provision of the Section 11 of the Civil Procedure Code which can be looked into to find out the applicability of the doctrine of res judicata and in such matters principles of res judicata, for making this submission he strongly relies on two judgments of the Supreme Court, that is Satyadhyam Ghosdal v. Smt. Deorajon Debi AIR 633 In Sdatyadhayn Ghosal's case it was observed as under:-
'The principle of res judicata is based on the need of giving a finality to judicial decision,what it says is that, once a res is judicata, it shall not be adjudged again primarily it applies as between fast litigation and future litigation. When a matter-whether on a question of fat or a question of law-has been decided between two parties in one suit, or proceedings, and the decision is final, either because on appeal was take to a higher because no appeal was dismissed, or no appeal lie, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. The principle of res Judicata is embodied in relation to suits in section 11 of the Code of Civil Procedure; but eve where section 11 does not apply the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any Higher court must in any future litigation proceed on the basis that the previous decision was correct.' (Emphasis supplies).
In I. L. Jankirama Iyer's case, (AIR 1962 SC 633)(supra) their Lordship observed this:-
'That takes us t the question of res judicata. The argument is that on general grounds of res judicata the dismissal of the suit (O. S. No. 30 of 1943) filed by defendant 1 to 6 should preclude the trial of the present suit. It has been fairly conceded that in terms Section 11 of the Code cannot apply because the present suit is filed by the creditors of defendant 1 to 6 in their representative character and is conducted as a representative suit under Order 1, Rule 8, and it cannot be said that defendants 1 to 6 who were plaintiff in the earlier suit and the creditors who have brought the present suit are the same brought he present suit are the same parties or parties who claim through each other. Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be urged against such a suit can be provision of Section 11 and no other, In our opinion, therefore, there is no substance in the ground that the present suit is barred by res judicata.'
The further submission of Mr. R. S. Bindra is that to hold otherwise would render Section 11, Civil Procedure Code, nugatory and would introduce anomalies, He submits that if the general principles of res judicata are to be applied to suit independently of Section 11, Civil Procedure Code also, then a decision if it fell under Section 11 of the Code, would be res judicata in a subsequent suit and even if it did not so fall thereunder, It would equally be res judicata Leaving aside the plausibility of this argument of Mr. Bindra, we feel bound by the decision of their Lordship of the Supreme court which pointedly considers this aspect of the question in Gulabhand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153. It is the ratio of this Judgment which has bee reiterated in the latter judgment in Nanak Singh's case, (AIR 1968 SC 1370)(supra) on which h Mr. Khoji has relied. This is what has been said in paragraph 43 of this judgment (Gulabchand Chhotalal Parikh's) case (supra):-
'43. The general principle of res judicata has been applied to suit even though the decision of the same matter in controversy had been previously given by a competent court in proceeding which were not suits under the Code of civil Procedure. The case lae on the subject will be discussed later. It is urged that there seems to be no good principle behind applying the general principles of res judicata to suits in circumstances which do not bring the previous decision within the language of Section 11, and that the legislature's restricting the application of the general principles of res judicata to the circumstances mentioned in Section 11 must be deemed to indicate that the general principle of res judicata be not applied to bar a subsequent suit if the earlier decision of the same controversy between the same parties had been arrived at in proceedings other than suits and in which the entire procedure provided for the decision of the dispute in a regular suit might not have been followed. It appear to us that the reason for the specific provision of Section 11 is not that the legislature intended to bar the application of the general principles of res judicata to suits when the previous decision is arrived at in proceedings of the than suit. The legislature was providing in the code of Civil Procedure for the trial of suit over which the Civil Court was given jurisdiction under the provisions of the Code. The preamble of the Code of 1908 reads:-
'Where as it is expedient to consolidate ad amend the laws relating to the procedure of the Courts of Civil Judicature; it is hereby enacted as followed:-
The Code was dealing with procedure of the Civil Courts only and had therefore, not to consider what would be the effect on the trial of suits in view of the provisions of other enactment or of general principles res Judicata to the effect of decision about res judicata to the effect of decisions on a civil suit on a subsequent civil suit and therefore enacted Section 11 in the form in which we find it. It made one of the condition for the application of a previous decision to operate as res judicata to be that the previous decision is made not only by a Court competent to make it but by a court which may be competent to try the subsequent suit. This condition must have been considered necessary in view of the observation of the Privy Council in Misir Raghobardia's case, (1882)9 Ind App 197(PC) and on account of the hierarchy or courts under the various Acts constituting courts of Civil judicature and it could have been felt that decision by a court which is not competent to decide the subsequent suit be not treated of a binding nature. Such an exceptional procedure seems to have been provided as a matter of precaution as the Court not competent to try the subsequent suit must necessarily be a Court of inferior jurisdiction and therefore more liable to go wrong whatever the reasons may be the provision of Section 11 will govern a previous decision in a suit barring a subsequent suit with respect to the same matter in controversy and general principle of res judicata in such particular circumstance will neither be available to bar a subsequent suit not will be needed. It is in such context that the remarks of this Court in Jankirma Iyer's case, 1962 Supp (1) SCR 206; (AIR 1962 Sc 633) at p. (224 of SCR): (at p. 641 of AIR) are to be considered. In that case the decision in a previous suit could not operate as res judicata in accordance with the provision of Section 11 of the Code because the parties in the two suits could not be said to be the same parties or parties who claimed through one another. It was then said:
'Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata we are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provision of Section 11 and no other'.
The observation are to be read in the context in which they are made, the context being that.
'the question of res judicata was being considered in connection with the decision in a previous suit and the parties in the two suits being not the same. In fact, general principles of res judicata also require that the earlier decision be between the same parties. A decision not inter parties cannot even on general principles of res judicata operate as res judicata in a subsequent suit.'
In view of this authoritative pronouncement we feel no scope is left to examine the second argument of Mr. Bindra noticed above. Even in the earlier judgment of the Supreme court in satyadhyan Ghosal's case, (AIR 1960 SC 941)(supra) relied upon by him, it has been stated in categorical terms that in matter of suits also where section 11, Civil procedure Code does not apply the principles of res judicata have been applied by the Courts for the purpose of achieving finality in litigation. Thus we do not find any substance in this submission find the references made by Mr. Khoji civil Procedure Code, in support of his contention are totally irrelevant. These Explanation have been newly inserted in the section by the Code of Civil Procedure (Amendment) Act, 1976. As the old section did not directly apply to the orders in execution proceedings and the principles or res judicata were held applicable to them. The explanation VII now makes this section directly applicable to such cases. Similarly prior to the amendment brought about in this section an issue decided by a competent Court of limited jurisdictions in a former suit was not res judicata in respect of the same issue raised in a subsequent suit unless the Court deciding the former suit was competent to entertain the subsequent suit itself the present Explanation VIII now renders such decision res judicara. The Explanations have nothing to do with the point in issue.
5. So far as the first argument of Mr. Bindra noticed above is concerned, we find that in addition to the judgment of the Lahore High Court and of this Court, referred to in the earlier part of this judgment. he is supported by a string of judgment of other High Court as well whether in it has repeatedly been held on varied reasons that a decision under Order 22, Rule 5, Civil Procedure Code, would not operate as res judicate in a subsequent suit between the same parties or persons claiming through them wherein the question of succession on heirship to the deceased party in the earlier proceedings is directly raised Some of these reasons are as follows:-
(i) Such a decision is not on an issue arising in the suit itself but is really a matter collateral to the suit and has to be decided before the suit itself can be proceeded with. The decision does not lead to the determination of any issue in the suit.
(ii) The legal representative is appointed for orderly conduct of the suit only. Such a decision court not take away, for all times to come, the right of a rightful heir of the deceased in all matters.
(iii) The decision is the result of a summary enquiry against which no appeal has been provided for.
(iv) The concept of legal representative and heirship of a deceased party are entirely different. In order to constitute one as a legal representative, it is unnecessary that he should have a beneficial interest in the estate. The executors and administrator are legal representatives though they may have no beneficial interest. Trespasser into the property o the deceased claiming title in himself independently of the deceased will not be a legal representative. On the other hand the heirs on whom beneficial interest devolved under the law whether statute or other, governing the parties, will be legal representatives.
6. The decisions on which Mr. Bindra has placed firm reliance and which uphold the above proposition of his, are in their chronological order, as follows :-
1. Chiragh Din v. Dilawar Khan AIR 1934 Lah 465.
2. Antu Rai v. RamKinkar Rai AIR 1936 All 412.
3. Zalim v. Tirlochan Prasad Singh, AIR 1937 Oudh 220(FB).
4. Mohamed Khan v. Jan Mohammad, AIR 1939 Lah 580.
5. Daulat Ram v. Mt. Meero AIR 1941 Lah 142.
6. Kuwarlal singh Indreaj singh v. Smt Kuwarani Uma Devi AIR 1946 Nag 424.
7. Bhudeo Pandey v. Gupteshwar Missir, AIR 1951 Pat 537.
8. Chacko Pyli v. Iype varghese AIR 1958 Trav Co 147(FB).
9. Ram Kalap v. Banshi Dhar AIR 1958 All 573.
10. Dukh Haran Tewary v. Dulhin Bihasa Kuer 1963 Pat 390.
11. Koneridoss v. N. Subbiah Naidu, AIR 1975 Mad 124.
12. Krishnakumar V.N. Goverdhana Naidu AIR 1975 Mad 174.
13. Suraj Mani, v. Kishori Lal AIR 1976 Him Pra 74.
14. Mangat v. Surja 1979 Rev LR 129: (AIR 1979 Punj & Har 194).
As against this, Mr. Khoji counsel for the plaintiff (?) conceded his inability to show us any judgment of any High court in India except two, that is Raj Bahadur v. Narayan Prasad, AIR 1926 All 349 Jai Narain v. Ram Deo AIR 1933 Oudh 207, which may have take a contrary view. These above noted two judgment referred to by Mr. Khoji have even been specifically overruled by the larger Benches of those very High Courts, Raj Bahadur's case (supra) was dissented from in Antu Rai's Case (supra) and Ram Kalap's case (supra). These latter judgment while considering the earlier judgment that is Raj Bahadur's case (supra) have said that though the facts in that case were very different from the facts in these cases yet if it was intended to lay down in the case of Raj Bahadur (AIR 1926 All 439) that a decision in the summary enquiry under order 22, Rule 5, Code of Civil Procedure, for ever barred anyone again claiming property as the heir of the deceased party in the suit, then we respectfully party in the suit, then we respectfully dissent from it. Similarly the other judgment relied upon by Mr. Khohi that is Jai Narain case (supra) was later overruled by a Full Bench of the said court, in Zalim's case (AIR 1937 Oudh 220). The question of law posed before the Full Bench was: does the determination of the question whether a certain person is or is not the legal representation of a deceased party in a proceeding under Order 22, Rule 5, Civil Procedure Code operate as res judicata so as to preclude the same question from being reagitated in a separate suit? Does the ruling reported in Jai Narain v. Ram Deo AIR 1933 Oudh 207, lay down the correct law. While answering this question this is what was held by the Full Bench:--
'After a careful consideration of the case law on the subject and the trend of authorities in the various High Court, we are clearly of the opinion that the answer to the question referred to the Full Bench should be in the negative and we hold that the determination f the question whether a certain person is or is not legal representative of a deceased party in a proceeding under Order 22, Rule 5 Civil Procedure Code, does not operate as res judicata so as to preclude the same question from being reagitated in a separate suit and we decide that the ruling reported in 8 Lucknow 477 does not lay down the correct law of the subject'.
7. In view of the above referred to catena of authorities by Mr. Bindra and the inability of Mr. Khoji to show any judgment to the contrary, we find that the above noted first argument of Mr. Bindra is well-merited.
8. At least one of the reasons that the appointment of a legal representative is only for the purposes of that suit alone noted by us above, has met the approval of the Supreme court in Daya Ram v. Shyam Sundari, AIR 1965 SC 1049. In that case while examining and interpreting the provisions of Order 22, Rule 4, Civil Procedure Code, in the context of the question involved that is when this provision speaks of 'legal representative' it is the intention of the Legislature, that unless each and every one of the legal representatives of the deceased defendants, where these are several is brought on record there is no proper constitution of the suit or appeal with the result that the suit or appeal would abate, the court on the basis of almost universal consensus of opinion of all the High Courts in India, while holding that the impleaded legal representative sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record, approved the following enunciation of law in an earlier decision of the Madras High Court in Kadir Mohideen v. Muthukrishna Ayyar, (1903) ILR 26 Mad 230 :-
'In our opinion a person whom the plaintiff alleges to be legal representative of the deceased defendant and whose name the court enters of the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate... If this were not the law, it would in no few cases be practically impossible to secure a complete representation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be no hardship in a provision of law by which a party dying during the pendency of a suit, is fully represented for the purpose of the suit, but only for that purpose, by a person whose name is entered on the record in place of the deceased party under Section 365, 367, an 368 of the Civil Procedure C ode, though such person may be only one of several legal representative of may not be the true legal representative.
This, in out opinion correctly represents the law.' (Emphasis provided).
This principle of law was again reiterate and approved by the Supreme Court in a later judgment, that is, Harihar Prasad Singh v. Balmiki Prasad Singh, AIR 1975 SC 733, at p. 746, paragraph 33.
9. We are, therefore, of the opinion that in essence a decision under Order 22, Rule 5, Civil Procedure Code, is only directed to answer an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is provided for. The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceeding, In the instant case the brevity of the order (reproduced above) with which the report submitted by the trial Court after enquiry submitted by the trial Court after enquiry into the matter was accepted, is a clear pointer to the fact that the proceedings resorted to were treated to be of a very summary nature. It is thus manifest that the Civil Procedure Code proceeds upon the view of not imparting any finality to the determination of the question of succession r heirship of the deceased party.
10. In view of the above discussion we are clearly of the opinion that the answer to the above referred to question stated in the opening part of the judgment has to be in the affirmative and we accordingly hold that in no case a decision under Order 22, Rule 5, Civil Procedure Code, would operate as res Judicata between the same parties of their successor in interest or their privies, in a subsequent proceeding even when the said parties had been provided n opportunity to contest the issue and lead the evidence thereon. With this answer to the question posed, we send back the case to the learned single Judge for decision on merits.
S. S. Sandhawalia, C.J.
G.C. Mital, J.