Finding recorded by court execution proceedings would be res judicata in subsequent suit.

M. KARPAGAVINAYAGAM, J.

( 1 ) THIS second appeal is directed against the judgment and decree in A. S. No. 101 of 1993 dated 25. 2. 1984 passed by the learned Subordinate Judge, Chengalpattu, confirming the judgment and decree in O. S. No. 45 of 1982 dated 23. 9. 1983 on the file of the learned district Munsif, Madurantakam.

( 2 ) THE plaintiff is the appellant herein. He filed the suit for declaration of title and permanent injunction.

( 3 ) THE case of the plaintiff is as follows:-the plaintiffs father Thiruvengada gounder died in April, 1963. Previously, the said Thiruvengada Gounder filed a suit in O. S. No. 228 of 1957 as against his sons claiming that the suit properties are his absolute properties, which were allotted to him in a partition between him and his sons. He also filed a suit for recovery of mesne profits in O. S. No. 352 of 1957. Both the suits were decreed in favour of the said Thiruvengada Gounder. After the death of the said Thinuvengada gounder, the plaintiffs and other sons alone are his heirs and -hence, they are entitled to the suit properties. The claim of right by the first defendant over the suit properties on the strength of the Will and settlement deed alleged to have been executed by the said thiruvengada Gounder in favour of the first defendant is not valid. The finding given by the executing court recognising the first defendant as a legal representative of the said Thiruvengada Gounder in execution petition filed by the first defendant to execute the decrees in O. Sr.no. 228 of 1957 and O. S. No. 352 of 1957 would not disentitle the plaintiff from claiming title over the suit properties in the exhaustive suits.

( 4 ) THE case of the first defendant is this in both the suits O:s. Nos. 228 and 352 of 1997 as against the plaintiff in this suit, the civil Court granted decrees in favour of the said Thiruvengada Gounder that he is the absolute owner of the properties and entitled to mesne profits. These decrees have become final. Before his death, the said Thiruvengada gounder executed a registered will in favour of the first defendants 19. 11. 1961. After the suit was decreed, he also executed a settlement, deed in his favour on 10. 4. 1963. After his death, the first defendant filed execution petitions in these two suits and obtained orders in his favour on the strength of the said will and the settlement deed, which were found to be genuine, and binding on the plaintiff in this suit. Therefore, the suit is barred by res judicata in view of the earlier proceedings.

( 5 ) AFTER framing the necessary issues, the trial court dismissed the suit with costs. Aggrieved by this, the plaintiff filed an appeal before the lower appellate Court, which in turn, confirmed the judgment of the trial Court. Hence, this second appeal.

( 6 ) AT the time of admission, the substantial question of law formulated by this court is as follows :-whether the courts below erred in holding that the decision in the earlier execution proceedings that the first defendant is the legal representative of deceased Thiruvengada under a will and settlement deed alleged to have been executed by him, will operate as res judicata in a comprehensive suit filed by the plaintiff challenging the execution of the will?

( 7 ) IN elaboration of the above substantial question of law, the counsel for the appellant would submit that the finding in the earlier execution proceedings is given during the cause of execution proceedings under Order 22. Rule 10 CPC, which are summary in nature, that that would not finally decide the right of the parties and that any finding therein was only to bring on record the legal representatives to proceed further and as such, in this suit the plaintiff is entitled to question the validity of the will and settlement deed in this fresh suit.

( 8 ) IT is further contended that any finding with reference to the will and settlement deed in execution proceedings would not operate as res Judicata in this