An order passed under Order XXII, Rule 5 of the Civil Procedure Code, 1908, dismissing an application for impleading the legal representative of a deceased plaintiff is not appealable.

1. Sahib Dayal and others filed the suit for declaration and for the grant of the permanent injunction on July 20, 1982. During the pendency of the said suit, Sahib Dayal, one of the plaintiffs died on Sept 28, 1982. Pearey Lal, respondent, moved the application on Dec.21, 1983, for bringing him on record as his legal representative. It was alleged therein that Sahib Dayal, deceased, executed and got registered the will dated May 2,1978, in respect of the land in suit, in his favour. Therefore, he was his legal representative and was. thus, entitled to be brought on the record as such. That application was contested on behalf of the defendants on the plea inter alia that Pearey Lal, respondent, was not his legal heir, nor any will was executed by him in his favour, as alleged. The trial Court framed the necessary issue as to whether Pearey Lal was the legal heir of deceased Sahib Dayal on the basis of the will dt. May 2,1978, as alleged. Ultimately, it found that the execution of the will in favour of the respondent by the said Sahib Dayal had not been proved and, thus, Pearey Lal, applicant, did not become the legal heir of the deceased, as claimed. Consequently, the application filed by him was dismissed vide order dt. Oct. 6, 1984. Dissatisfied with the same, Pearey Lal filed appeal. Therein, a preliminary objection was raised on behalf of the defendants that the order passed by the trial Court was under O.XXII, R.5, Civil P.C. (hereinafter called the Code) and as such, no appeal was maintainable against the same. The only remedy available to him was to move this Court by way of a revision petition. On behalf of Pearey Lal it was argued that the order by the trial Court had been passed under O.XXII, R.10 of the Code and as such, an appeal thereto was envisaged under O.XLIII, R. 1 of the Code. The learned lower appellate Court came to the conclusion that the order of the trial Court will be deemed to have been passed under O.XXII, R.10 of the Code and therefore, the appeal was maintainable. On merits, it reversed the finding of the trial Court and came to the conclusion that the execution of the will was duly proved and Pearey Lal was entitled to be impleaded as the legal representative of Sahib Dayal, deceased. Dissatisfied with the same, the defendant, has filed this revision petition in this Court.

2. The main controversy between the parties in this revision petition is as to whether the order of the trial Court dismissing the application of Pearey Lal for impleading him as the legal representative of Sahib Dayal, deceased, was appealable or not.

3. It is not disputed that if the said order is held to have been passed under O.XXII, R.5 of the Code, then, no appeal was maintainable against the same but if the said order is held to be under O.XXII, R.10, then the appeal therefrom was competent. Order XXII, R.3 of the Code, provides for the procedure for an application for bringing on record the legal representatives in case of death of one of several plaintiffs or of sole plaintiff. According to the said provision where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Rule 5 of the said Order provides for the determination of questions as to legal representative. The term "legal representative" is defined under 5.2(11) of the Code, which is to the following effect. -

" legal representative means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."

From the averments made in the application dt. Dec.21, 1983, filed by Pearey Lal. it is clear that he claimed h