Back
1982 Supreme(AP) 297
Andhra Pradesh High Court
Judges : A.SEETHARAM REDDY
MOHD HAFEEZ - Appellant
Versus
MOHD.AKBAR SIDDIQUI - Respondent
Decided On : 08-26-82
The decision of a court in proceedings under the Indian Succession Act, 1925, is not res judicata and does not bar the parties from challenging the decision by filing a separate suit.
Headnote:
SUCCESSION CERTIFICATE - IMPLEADING RESPONDENTS - RES JUDICATA - INDIAN SUCCESSION ACT, 1925, SECTIONS 383, 384, 387 - CODE OF CIVIL PROCEDURE, 1908, SECTIONS 105, 141, ORDER 1 RULE 10 - INTERPRETATION - APPLICABILITY - FINALITY OF PROCEEDINGS - RIGHT TO CHALLENGE DECISION - SCOPE OF SECTION 387 - DISTINCTION BETWEEN "ANY SUIT" AND "ANY OTHER PROCEEDING" - OBJECTIVE OF EXPLANATION TO SECTION 141 CPC - PRECLUSION FROM DISPUTING CORRECTNESS OF REMAND ORDER - APPLICABILITY OF RES JUDICATA TO EXECUTION PROCEEDINGS - EXPLANATION VII AND VIII TO SECTION 11 CPC - SPECIAL PROVISIONS OF INDIAN SUCCESSION ACT - AVAILABILITY OF SEPARATE SUIT - EFFECT OF ORDER REFUSING TO SET ASIDE DISMISSAL ORDER.
Fact of the Case:
The petitioner filed an application for a succession certificate under the Indian Succession Act, 1925. The respondents filed a claim petition claiming entitlement to the certificate based on a will executed by the deceased. The claim petition was dismissed, and a revision petition against the dismissal was also dismissed. Subsequently, the respondents filed an application to implead themselves as respondents in the original petition for the succession certificate, which was allowed by the lower court.
Finding of the Court:
The court held that the respondents were not entitled to be impleaded as respondents in the original petition for the succession certificate. The court interpreted Section 387 of the Indian Succession Act, 1925, along with Section 141 and Order 1 Rule 10 of the Code of Civil Procedure, 1908, and concluded that the respondents were not precluded from challenging the decision in the succession certificate proceedings by filing a separate suit. The court also held that the order of the lower court refusing to set aside the dismissal order for default would not operate as res judicata so as to bar the respondents from having recourse to a suit.
Issues: 1. Whether the respondents were entitled to be impleaded as respondents in the original petition for the succession certificate. 2. Whether the order of the lower court refusing to set aside the dismissal order for default would operate as res judicata so as to bar the respondents from having recourse to a suit.
Ratio Decidendi: 1. The court interpreted Section 387 of the Indian Succession Act, 1925, along with Section 141 and Order 1 Rule 10 of the Code of Civil Procedure, 1908, and concluded that the respondents were not precluded from challenging the decision in the succession certificate proceedings by filing a separate suit. The court held that the words "in any other proceeding" in Section 387 must mean proceedings not under the Act but under any other law, and that a restrictive meaning should be given to these words to prevent parties from protracting litigation by filing multiple applications. 2. The court held that the order of the lower court refusing to set aside the dismissal order for default would not operate as res judicata so as to bar the respondents from having recourse to a suit, as the Indian Succession Act, 1925, being a special enactment, makes a special provision enabling the parties to file a separate suit challenging any decision arrived at under the Act.
Final Decision: The court allowed the civil revision petition and set aside the order of the lower court allowing the respondents to be impleaded as respondents in the original petition for the succession certificate.
( 1 ) IN this revision the petitioner seeks to revise the order of the district Munsif, Sangareddy dt. 10th November 1980 allowing T. A. No. 254 of 1980 filed by the respondents herein under Or 1 rule 10 CPC to implead them as respondents to the O. P. filed by the petitioner.
( 2 ) THE circumstances leading to the revision are as follows: The petitioner filed O. P. No. 6 of 1977 in the District Munisif s court, Sanga reddy for grant of a succession certificate under the Indian Succession Act for withdrawing an amount of Rs. 3122-40 Ps. which was deposited by his father Mohd. Salar in the State Bank of Hyderabad, Sangareddy branch, the respondrnts filed a claim petition in I-A. No. 235 of 1977 claiming that they are entitled to the certificate under a will executed by the late Mohd. Salar and therefore the certificate may be granted in their favour. It was however dismissed and Civil Revision petition filed against the said order also met with the same fate in this court. Thereafter, I. A. No. 151 of 1979 was filed by the respondents raising a new plea that a compromise was arrived at between the revision petitioner and his father late Mohd. Salar in A. S. No. 159 of 1971 in this court under which he was given some share with no further right to the properties in future. The LA. was allowed and a revision, CRP. No. 5055/79 filed by the petitioner was dismissed for default on 9-6-1980. The application filed for setting asied the order of dismissal was dismissed on 29-7-1980. The respondents then filed an interlocutory application (I. A. No. 254 of 1980) under Or. I. rule 10 CPC to implead them as respondents to the O. P. filed by the revision petitioner. It was allowed by the court below. Hence this revision. The contention of Mr. Ramarao, learned counsel for the revision petitioner, is that the orders made on the application filed by the claim petitioners culminating in the dismissal of the application filed for setting aside the order of dismissal constitutes res judicata and therefore the application for impleading them as respondents to the O. P. is barred. Consequently, under section 387 of the Indian SUCCESSION ACT, 1925, it is not open to the respondents in these proceedings to challenge the legality of the certificate to be issued under the Indian SUCCESSION ACT, 1925 and therefore in so far as the proceedings in the o. P. are concerned they have become final as respondents could not avail themselves of the remedy provided under the Act by failing to contest the matter effectively and properly,
( 3 ) THE counter contentions of the learned counsel for the respondents are that if the respondents are precluded from participating in the proceedings by not allowing them to get impleaded as respondents to the o. P. even though there is scope for challenging the proceedings by filing suit, it would unnecessarily lead to multiplicity of proceedings. Therefore, the petition filed by the respondents to implead them in the O. P. has been rightly allowed by the court below and the order of the lower court requires no interference by this court in this revision.
( 4 ) MR. C. N. Babu was appointed amicus curiae at the instance of the court and his assistance which is of considerable value is acknowledged with thanks.
( 5 ) AFTER taking me through various provisions of the Indian sucession Act, the Code of Civil procedure, and the case law, Mr. C. N. Babu submits that the entire point turns upon the words "in any other proceeding" occurring in Section 387 of the Indian Sucession Act, that any order passed in interlocutory matters would not constitute resjudicata despite the amendment of CPC by adding explanations VII and VIII to Sec. 11, cpc and that the position is still the same as obtained prior to the amendment of the said explanations inasmuch as it is open to the parties to challenge the decision arrived at in the proceedings initiated under the indian Sucession Act by way of suit or any other proceeding. But
