An order under Order 22, Rule 5, Civil P. C., determining the legal representative of a deceased party is not res judicata in a subsequent suit, as it is not an appealable order and the inquiry is summary in nature.

This revision petition is against the order in I. A. No. 282 of 1973 in O. S. No 36, of 1963, on the file of the District Munsif, Periyakulam, which is an application under Order 22, Rule 5, Civil P. C. One Seethammal filed the above suit for partition. There was a preliminary decree and a second appeal (S. A. No. 935 of 1969) against the preliminary decree was pending in this Court. The said Seethammal died, Koneridoss, the present revision petitioner who is the husband's sister's son of the abovesaid Seethammal first got himself impleaded as the legal representative of Seethammal in the second appeal (S. A. 935 of 1969). He had been so impleaded as the 7th respondent in that second appeal. At a later stage, Subbiah Naidu the contesting respondent herein filed a petition before this Court in the above second appeal for getting himself impleaded as the legal representative of Seethammal on the ground that Seethammal had left a registered will under which he (Subbiah Naidu) is the sole legatee and that therefore he is the only legal representative of Seethammal. The above said petition C. M. P. No. 14623 of 1970 in S. A. 935 of 1969 was disposed of by Ramanujam, J. The learned Judge did not decide who among the two rival claimants is the real legal representative of Seethammal but allowed both of them to be parties to the second appeal. Subbiah Naidu (hereinafter reffered to as the respondent) was added as the 8th respondent in the above said second appeal, while Koneridoss (hereinafter referred to as the revision petitioner) had already been added as the 7th respondent in the second appeal. The learned Judge in that order observed that as there is rival claim as to who is the legal representative of deceased Seethammal both of them would be treated as legal representatives for the purpose of the second appeal and that such order is without prejudice to the contentions of either of the parties. The learned Judge also directed that the question regarding the genuineness of the will set up by the respondent herein is a matter to be agitated in separate proceedings.

2. After the disposal of the second appeal I. A. 115 of 1968 in O. S. 36 of 1963 come to be filed for passing a final decree. Then the respondent herein filed I. A. 282 of 1973, out of which the present revision petition arises, contending that by virtue of the will left by Seethammal, he is the real legal representative entitled to continue the proceedings and that therefore he should be impleaded as the legal representative of Seethammal. This application is under O. 22, R. 5, Civil P. C. The learned District Munsif on a consideration of the evidence placed before him held that the will propounded by the respondent is valid and that therefore he is the only legal representative of Seethammal and that the revision petitioner herein who claims to be the heir of Seethammal (husband's sister's son) is not the legal representative of Seethammal. It is this order that is questioned in the present revision petition.

3. Being a revision under S. 115, Civil P. C., it is not open to the revision petitioner to canvas the correctness or otherwise of the factual finding given by the learned District Munsif regarding the will. The contention of the learned counsel for the revision petitioner is that in view of the order passed by Ramanujam, J., in C. M. P. 14623 of 1970 in S. A. 935 of 1969, the revision petitioner and the respondent should be allowed to continue as the legal representatives of Seethammal even in subsequent proceedings (final decree proceedings) and that the Court below is wrong in entertaining an application under Order 22, Rule 5, Civil P. C. filed by the respondent herein. The learned counsel referred to the decision of the Supreme Court reported in Rangubai v. Sundarabai, AIR 1965 SC 1794 where at page 1797, it has been observed by the Supreme Court that if the legal representatives are brought on record at one stage of the suit, it will enure for the