A determination under Order 22 Rule 5 of the Civil Procedure Code is not res judicata. It is a summary enquiry to determine who should be substituted in place of the deceased party in a pending proceeding and such a decision does not operate as res judicata.

1. Surja (now deceased) filed a suit against Mangat and his brother Hukum, petitioners for a declaration that the gift-deed dated June 17, 1969, alleged to have been executed by him in respect of agricultural land measuring 62 Kanals 16 Marlas in village Sandhir, Tahsil Karnal, in their favour is null and void and for a permanent injunction restraining them from interfering with his possession of the said land. The trial court decreed the suit in favour of Surja on March 13, 1974. Mangat and Hukum preferred an appeal which remained pending in the Court of District Judge, Karnal, who vide order dated Feb. 26, 1975, adjourned it sine die. On Aug. 1, 1975, the District Judge entrusted this appeal to the Additional District Judge, Karnal, directing that the appeal will be taken up for arguments in the transferee Court on Aug. 7, 1975. The Order dated Aug. 1, 1975, purported to have been passed in the presence of Shri B.P. Jain, counsel for the petitioners and Shri Chinta Mani, counsel for Surja. On Aug. 7, 1975, nobody appeared before the Additional District Judge, Karnal, on behalf of Surja. The Additional District Judge heard ex parte arguments of the petitioners and vide Order dated Aug. 18, 1975, accepted the appeal and dismissed the suit of Surja.

2. On Sep. 15, 1975, Ishwar Singh, respondent claiming to be the adopted son of Surja filed an application for rehearing of the appeal stating that Surja died on Aug. 29, 1975, and no intimation was received by him or his counsel that the appeal had been posted for arguments for a particular date. Ishwar Singh is a minor. The application was filed on his behalf by his father Parsa. It was stated in the application that Parsa visited Karnal on Aug. 28, 1975, to make enquiries about the appeal from Sri Chinta Mani, Advocate, who informed him (Parsa) that no information had been received regarding the fixation of the appeal. On further enquiry, Parsa learnt that the appeal had been heard and decided ex parte. The absence of Surja in the appellate court on Aug. 18, 1975, was not intentional. It was accordingly prayed that the ex parte decree passed by the appellate court be set aside and the appeal be reheard.

3. Mangat and Hukum, petitioners contested the application of Iswar Singh. They denied that Ishwar Singh had locus standi to file the application because he was neither the adopted son of Surja nor was his legal representative. According to them, the counsel for the parties had been informed about the date of hearing of the appeal.

4. The learned District Judge framed the following issues :

1. Whether the application for setting aside the ex parte decree and for rehearing of the appeal on merits is within time ?

2. Whether the applicant has locus standi to file this application ?

3.Whether there are sufficient grounds for accepting the present application ?

5. All the three issues have been decided in favour of Iswar singh, respondent, by Order dated Oct. 27, 1977. It is a against this order that the present revision is directed.

6. The ex parte decree was passed by the appellate court on Aug. 18, 1975 and the application for rehearing of the appeal was submitted on Sep. 15, 1975. The application was, therefore, well within time. Issue No. 1 was not pressed before the learned District Judge. It has been rightly found against the petitioners.

7. Shri Chinta Mani, Advocate, appeared as a witness and he stated on oath that he was not informed about the date of hearing of the appeal in the Court of Additional District Judge, Karnal. In view of his categorical statement it is difficult to hold that he had been informed about the date of hearing or he absented intentionally. It appears that there crept some unintentional error when his presence was recorded at the time of the transfer of the appeal from the Court of District Judge, Karnal, to that of Additional District Judge on Aug. 1, 1975. The learned District Judge has rightly found issue No. 3 in favour of the respondent.

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