The appointment of a legal representative is not a determination of any issue properly raised in the suit itself and cannot operate as res judicata.

Ramaswami, J.

1. It is advisable at the outset to set out the material facts which have led to the prosecution of this appeal. Janki Pandey and Foujdar Mahton had obtained a preliminary mortgage decree against which the judgment-debtor preferred appeal to the High Court. While the appeal was pending, Janki Pandey died and in his place plaintiff and defendant 1 were substituted. After the appeal was dismissed, final decree was prepared in favour of plaintiff and defendant 1. The plaintiff brought this present suit for a declaration that he was the daughters son of deceased Janki and being his sole heir was entitled to the entire money due on the mortgage decree. The plaintiff also asked for a temporary injunction restraining defendant 1 from withdrawing his share of the amount due on the mortgage decree. The main ground of defence was that plaintiff was not the grandson of Janki, that the suit was in any ease barred by res judicata. The learned Munsif held that plaintiff was the sole heir of the deceased Janki, but he dismissed the suit on the ground that the rule of res judicata applied. In appeal the learned Subordinate Judge reversed the judgment of the Munsif holding that plaintiff was entitled to decree.

2. The main question to be determined in this appeal is whether the claim of the plaintiff is barred by res judicata.

3. It is manifest that a decision of the question under O. 22, R. 5 whether a certain person is cr is not the legal representative of a deceased plaintiff is not an issue arising in the suit itself but it is really a matter collateral to the suit and one that has to be decided before the suit itself can be proceeded with. The rule empowers the Court in a case where a dispute arises as to who is the legal representative of a deceased plaintiff to appoint a legal representative for the purpose of prosecuting the suit. But the appointment of such legal representative is not the determination of any issue which is properly raised in the suit itself, and cannot operate as res judicata. This opinion is supported by a catena of authorities. In Antu Rai v Bam Kinkar Bai, 58 ALL. 734 : (A. I. R. (23) 1936 ALL. 412) the Allahabad High Court held that a decision under 0. 22, R. 5. Civil P, C , of a dispute as to which of several persons was the heir and legal representative of a deceased appellant was a decision in a summary proceeding for the purpose of continuance of the appeal and cannot operate as res judicata in a subsequent suit between the same persons regarding succession to the property of the deceased person, which property was not in suit in the earlier suit. The learned Judges dissented from Raj Bahadur V/s. Narayan Prasad, 48 ALL. 422 : (a. I. R. (13) 1926 ALL. 439) and expressly followed an earlier decision of the same High Court, Parsotarn Rao V/s. Janki Bai, 28 ALL. 109 : (1905 A. W. N. 206). Similarly in Samsarivsa Sarvathi v. Pathnmma, 20 I. C. 950 : (25 M. L. J. 279) the Madras High Court held that the question whether a person should be admitted as the legal representative of a deceased plaintiff to continue a suit could not be regarded as one of the questions arising for decision in the suit itself, and that it was a matter to be decided at a preliminary stage before the suit itself can be proceeded with. In Bala Bai V/s. Ganesh, 27 Bom. 162 : (4 Bom. L. R. 980) the Bombay High Court expressed the same view. In Chiragh Din V/s. Dilawar Khan, 154 I. C. 985 : (A. I. B. (21) 1934 Lah. 465) the Lahore High Court held that a decision of a proceeding under O. 22, B. 5, did not bar the reagitating of the same question in a separate suit and the rule of res judicata did not apply in such a case. Zalim v. Tirlochan Pd. Singh, 166 I. c. 393 : (i. I. R. (24) 1937 Oudh 220 P. B.) a Full Bench of the Oudh Chief Court reached the same conclusion.

4. Learned advocate for the appellant stressed the argument that the rule of res judicata as between co-plaintiffs will be applicable. But the argument is inva