Shri Ram Rawal v. Mr. Sandeep Kothari, Advocate

challenged order dated 2.5.2024, passed by executing court in Civil Execution Case No. 2 of 2019, whereby application filed by one Mr. Gaurav Kumar Agarwal, seeking impleadment in place of deceased Chairman of the Trust, was allowed. Petitioner has also challenged the judgment and order dated 24.1.2025, passed by 1st Additional District Judge, Kashipur, Udham Singh Nagar in Civil Revision No. 46 of 2024.

2. It is not in dispute that a suit for ejectment was filed by Thakur Ramchandra Ji Maharaj Trust, against the petitioner, through one Mr. Gopal Dass as Chairman of the trust the allegation that petitioner has trespassed over the property belonging to the trust. The suit was decreed by learned Trial Court vide judgment and order dated 2

16.11.2013. The judgment and decree passed by learned Trial Court attained finality. The trust (decree holder) put the decree to execution. During pendency of the execution proceedings, Mr. Gopal Dass, Chairman of the trust, who filed suit as Chairman of the trust, passed away on 27.4.2021. One Mr. Gaurav Kumar Agarwal sought his impleadment in the execution proceedings stating that he has been elected as Chairman of the trust. Petitioner filed objection against the application by contending that Mr. Gaurav Kumar Agarwal is not validly elected as Chairman of the trust. Executing court allowed the prayer impleadment made by Mr. Gaurav Kumar Agarwal, vide order dated 2.5.2024. Petitioner challenged the said order in a revision, which too has been dismissed by 1st Additional District Judge, Kashipur. Thus feeling aggrieved, petitioner has approached this court.

3. Learned Counsel for the petitioner contends that since status of Gaurav Kumar Agarwal as Chairman has come under cloud in view of the judgment rendered by Civil Judge (Sr. Div.), Kashipur in a separate suit and the executing Court was required to determine the question, under Order 22 Rule 5 CPC, as to whether the person seeking impleadment or substitution is the rightful legal representative, however without determination of the said issue, the executing court has allowed the application, which is unsustainable. 3

4. Mr. Arvind Vashistha, learned Senior Counsel appearing for the decree holder, however, supports the order passed by the executing court as affirmed by the revisional court.

5. It is not in dispute that Trust is the decree holder and the person seeking impleadment in the execution proceedings had aforesaid application, representative of the Trust. Merely because Mr. Gaurav Kumar Agarwal has been permitted to be impleaded in the execution proceedings will not create any personal right in his favour and possession of the property in question, shall be restored back to the trust and not to any individual, who claims to be Chairman of trust. Determination made by executing regarding person competent to be impleaded/substituted does not give any finality to the said issue and the principle of res judicata also do not apply. If there is inter se dispute between two or more persons who claim to be Chairman of the Trust, that issue has to be independently tried and decided in separate proceedings. A judgment debtor cannot contend that a person, who sought his impleadment in execution proceedings, is not validity elected, therefore, his impleadment is bad.

6. Hon’ble Supreme Court in the case of Dashrath Rao Kate v. Brij Mohan Srivastava, 4 reported as (2010) 1 SCC 277, has held as under: “21. As a legal position, it cannot be disputed that normally, an enquiry under Order 22 Rule 5 CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other persons, they being Ramesh and Arun Kate, who were joined in the civil revision as the legal representatives of Sukhiabai. The finding on the will in the order dated 9-9-1997 passed by the trial court could not become final as against them or for that matter, anybody else, claiming a rival title to the property vis-à-vis the appellant herein, and therefore, to that extent the observations of the High Court are correct. However, it could not be expected that when the question regarding the will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the will was a false document and it was held that he had utterly failed in proving false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. the document was ruling learned 25. Dr. Kailash Chand, counsel appearing for the respondent, also relied in Vijayalakshmi Jayaram v. M.R. Parasuram [AIR 1995 AP 351] . It is correctly held by the Andhra Pradesh High Court that Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res judicata. However, the High Court further correctly reiterated the legal position that the inter se dispute between the to be independently tried and decided in separate representatives has 5 proceedings. Here, there was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant-plaintiff. Therefore, there was no question of the appellant-plaintiff proving the will all over again in the same suit.

26. The other judgment relied upon is the Full Bench judgment of the Punjab and Haryana High Court in Mohinder Kaur v. Piara Singh [AIR 1931 P&H 130] . The same view was reiterated. As we have already pointed out, there is no question of finding fault with the view expressed. However, in the peculiar facts and circumstances of this case, there will be no question of non-suiting the appellant- plaintiff, particularly because in the same suit, there would be no question of repeating the evidence, particularly when he had asserted that he had become owner on the basis of the will (Ext. P-1).”

7. In view of the law declared by Hon’ble Supreme Court and also in view of the discussion made above, this Court does not find any reason to interfere with the judgment and order impugned in the writ petition. The Writ petition thus fails and is dismissed. No order as to costs. (Manoj Kumar Tiwari, J.)

21.3.2025 Pr

challenged order dated 2.5.2024, passed by executing court in Civil Execution Case No. 2 of 2019, whereby application filed by one Mr. Gaurav Kumar Agarwal, seeking impleadment in place of deceased Chairman of the Trust, was allowed. Petitioner has also challenged the judgment and order dated 24.1.2025, passed by 1st Additional District Judge, Kashipur, Udham Singh Nagar in Civil Revision No. 46 of 2024.

2. It is not in dispute that a suit for ejectment was filed by Thakur Ramchandra Ji Maharaj Trust, against the petitioner, through one Mr. Gopal Dass as Chairman of the trust the allegation that petitioner has trespassed over the property belonging to the trust. The suit was decreed by learned Trial Court vide judgment and order dated 2

16.11.2013. The judgment and decree passed by learned Trial Court attained finality. The trust (decree holder) put the decree to execution. During pendency of the execution proceedings, Mr. Gopal Dass, Chairman of the trust, who filed suit as Chairman of the trust, passed away on 27.4.2021. One Mr. Gaurav Kumar Agarwal sought his impleadment in the execution proceedings stating that he has been elected as Chairman of the trust. Petitioner filed objection against the application by contending that Mr. Gaurav Kumar Agarwal is not validly elected as Chairman of the trust. Executing court allowed the prayer impleadment made by Mr. Gaurav Kumar Agarwal, vide order dated 2.5.2024. Petitioner challenged the said order in a revision, which too has been dismissed by 1st Additional District Judge, Kashipur. Thus feeling aggrieved, petitioner has approached this court.

3. Learned Counsel for the petitioner contends that since status of Gaurav Kumar Agarwal as Chairman has come under cloud in view of the judgment rendered by Civil Judge (Sr. Div.), Kashipur in a separate suit and the executing Court was required to determine the question, under Order 22 Rule 5 CPC, as to whether the person seeking impleadment or substitution is the rightful legal representative, however without determination of the said issue, the executing court has allowed the application, which is unsustainable. 3

4. Mr. Arvind Vashistha, learned Senior Counsel appearing for the decree holder, however, supports the order passed by the executing court as affirmed by the revisional court.

5. It is not in dispute that Trust is the decree holder and the person seeking impleadment in the execution proceedings had aforesaid application, representative of the Trust. Merely because Mr. Gaurav Kumar Agarwal has been permitted to be impleaded in the execution proceedings will not create any personal right in his favour and possession of the property in question, shall be restored back to the trust and not to any individual, who claims to be Chairman of trust. Determination made by executing regarding person competent to be impleaded/substituted does not give any finality to the said issue and the principle of res judicata also do not apply. If there is inter se dispute between two or more persons who claim to be Chairman of the Trust, that issue has to be independently tried and decided in separate proceedings. A judgment debtor cannot contend that a person, who sought his impleadment in execution proceedings, is not validity elected, therefore, his impleadment is bad.

6. Hon’ble Supreme Court in the case of Dashrath Rao Kate v. Brij Mohan Srivastava, 4 reported as (2010) 1 SCC 277, has held as under: “21. As a legal position, it cannot be disputed that normally, an enquiry under Order 22 Rule 5 CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee. For example, here, there were two other persons, they being Ramesh and Arun Kate, who were joined in the civil revision as the legal representatives of Sukhiabai. The finding on the will in the order dated 9-9-1997 passed by the trial court could not become final as against them or for that matter, anybody else, claiming a rival title to the property vis-à-vis the appellant herein, and therefore, to that extent the observations of the High Court are correct. However, it could not be expected that when the question regarding the will was gone into in a detailed enquiry, where the evidence was recorded not only of the appellant, but also of the attesting witness of the will and where these witnesses were thoroughly cross-examined and where the defendant also examined himself and tried to prove that the will was a false document and it was held that he had utterly failed in proving false, particularly because the document was fully proved by the appellant and his attesting witness, it would be futile to expect the witness to lead that evidence again in the main suit. the document was ruling learned 25. Dr. Kailash Chand, counsel appearing for the respondent, also relied in Vijayalakshmi Jayaram v. M.R. Parasuram [AIR 1995 AP 351] . It is correctly held by the Andhra Pradesh High Court that Order 22 Rule 5 is only for the purpose of bringing legal representatives on record for conducting of proceedings in which they are to be brought on record and it does not operate as res judicata. However, the High Court further correctly reiterated the legal position that the inter se dispute between the to be independently tried and decided in separate representatives has 5 proceedings. Here, there was no question of any rivalry between the legal representatives or anybody claiming any rival title against the appellant-plaintiff. Therefore, there was no question of the appellant-plaintiff proving the will all over again in the same suit.

26. The other judgment relied upon is the Full Bench judgment of the Punjab and Haryana High Court in Mohinder Kaur v. Piara Singh [AIR 1931 P&H 130] . The same view was reiterated. As we have already pointed out, there is no question of finding fault with the view expressed. However, in the peculiar facts and circumstances of this case, there will be no question of non-suiting the appellant- plaintiff, particularly because in the same suit, there would be no question of repeating the evidence, particularly when he had asserted that he had become owner on the basis of the will (Ext. P-1).”

7. In view of the law declared by Hon’ble Supreme Court and also in view of the discussion made above, this Court does not find any reason to interfere with the judgment and order impugned in the writ petition. The Writ petition thus fails and is dismissed. No order as to costs. (Manoj Kumar Tiwari, J.)

21.3.2025 Pr