The main legal point established in the judgment is that in Rajasthan, obtaining probate is not necessary for executing a Will under Section 213 of the Indian Succession Act.

Gopal Krishan Vyas, J.-Challenging the impugned order dated 11.07.2000 passed upon the petitioners application under Section 47, read with Section 151, CPC by the learned Civil Judge (Jr. Dn.), Udaipur City (North), the petitioner has filed the present revision petition.

2. I have heard learned Counsel for the parties and perused the material on record.

3. It is contended by learned Counsel for the petitioner that earlier a suit was filed by Mahant

Radha Krishan Das which was decreed in his favour for ejectment on 211.1978. Against the Judgment and decree the defendant-petitioner went in appeal which was dismissed by the learned District Judge, Udaipur on 19.05.1981.

4. During the pendency of S.B. Civil Second Appeal No. 130/1981, preferred by the defendant-petitioner, the decree-holder plaintiff Mahant Radha Krishan Das died and, therefore, defendant-petitioner moved application under Order 22 Rule 4, CPC in the second appeal. Holding that the name of the proposed Legal representative viz., Shri Nipurt Kumar Sharma @ N.P. Sharma does not fall within the definition of legal representative as defined under Sub-section (11) of Section 2 of Civil Procedure Code, the learned Single Judge of this Court rejected the application and, consequently, dismissed the second appeal as having abated by order dated 16.02.1999. However, the learned Single Judge observed that the appellant would be at liberty to move a proper application for setting aside the abatement in accordance with law, if so advised.

5. Learned Counsel for the petitioner contended that it is clear from the facts in the case that the respondent Nripendra Prakash Sharma is not legal representative of the deceased decree-holder Mahant Radha Krishan Das and, therefore, the execution petition could not be moved by the respondent claiming to be the decree-holder in succession. He contended that the respondent did not disclose in the execution petition as to in what capacity he is entitled to execute the decree passed in favour of deceased Mahant Radha Krishan Das. Learned Counsel for the petitioner argued that petitioners objection under Section 47, read with Section 151, CPC was in respect of status of the execution petitioner Nripendra Prakash Sharma for the purposes of claiming execution of the decree and, therefore, the learned executing Court was under obligation to decide the same in accordance with law after appreciation of evidence.

6. Counsel for the petitioner next contended that even if the respondent claims to be successor in title by virtue of will executed in his favour by the late decree-holder mahant Radha Krishan Das, right as executor under the so called will would not be available without obtaining probate from a Court of competent jurisdiction. He contended that the executing Court has committed serious illegality in exercise of jurisdiction while rejecting the petitioners application under Section 47, read with Section 151, CPC inasmuch as the respondent cannot be entitled to get the decree executed in the absence of getting probate in his favour. He further contended that the Judgment of this Court in the second appeal bound the parties on the principle of res judicata and, therein, the Honble Court disbelieved the respondent to be the legal representative of deceased decree-holder Mahant Radha Krishan Das. He argued that the respondent had contested the application of the petitioner under Order 22 Rule 4, CPC in the second appeal instead of admitting himself to be the legal representative of the deceased decree-holder.

7. Learned Counsel for the petitioner lastly contended that any question raised under Section 47, CPC is required to be adjudicated by the executing Court itself by giving opportunity to both sides to lead evidence. He argued that the learned Court below rejected his application without making any enquiry as envisaged under Order 22 Rule 5, CPC.

8. On the other hand, learned Counsel for the respondent urged that the application fi