The main legal point established in the judgment is that the dispute regarding the legal representative of a deceased party is not covered under Section 47 of the CPC, but instead falls under Order 22, Rule 5. The decision under Section 47(3) as to who is entitled to represent a party is final for the purposes of Section 47.

( 1 ) A decree for eviction in favour of Seo Shankar Lal against Lal Behari was passed in suit No. 36 of 1964. The decree was put into execution by Sheo Shanker Lal. Sheo Shanker Lal died during the pendency of the execution proceedings. An application was filed by the 2nd respondent Rama Devi for substitution in his place. The application was allowed by the order dated 26-4-91 of the executing Court. Lal Behari filed a revision no. 26 of 1991 against this order. The revision was dismissed on 6-4-1995. It appears that an application dated 6-11 -96 was gv/gv/a537/2004/gsd-VNP/usa/24959/2004 then filed by the petitioner for substituting her name in place of the deceased decree holder Sheo Shankar Lal and for striking off the name of respondent No. 2 Smt. Rama devi. Objections were filed to this application by the 2nd respondent. The petitioner also filed another application for cross-examining the 2nd respondent, Smt. Rama devi. Both the applications of the petitioner for substitution as well a for cross-examination were rejected by the executing Court by its order dated 3-12-97. Against this order, a revision was preferred by the petitioner, which was dismissed on 16-7-99. Both the order are under challenge in this writ petition.

( 2 ) IT is submitted by Sri K. K. Arora counsel for the petitioner that the petitioner is the sister of the deceased Sheo Shanker Lal and a preferential heir to the 2nd respondent and therefore ought to have been substituted in place of the deceased decree holder. He submits that the application for substitution filed by the petitioner was an application falling under Section 47 (3) of the CPC and separate suit being barred by Section 47 (1), Civil Procedure Code the matter ought to have been decided after full opportunity to the parties to adduce oral evidence also and not on affidavits alone and the petitioners application for cross-examination was therefore erroneously rejected.

( 3 ) IF the determination of the heirship would affect the rights of the parties to succession and a separate suit is barred there may be some merit in the petitioners contention that opportunity to lead oral evidence and of cross-examination ought to have been provided. In order to determine whether the application filed by the petitioner falls within the ambit of Section 47 (3), Civil Procedure code it is necessary to determine the scope of sub-sections (1) and (3) of Section 47. "

( 4 ) SUB-SECTION (1) of Section 47 confines the scope of the objections to questions arising between the parties to the suit relating to execution discharge or satisfaction of the decree. In this case the judgment debtor was the first to raise an objection that the respondent no. 2 Rama Devi was not entitled to represent the deceased decree holder. However, the executing Court as I have already observed had allowed her to be substituted after contest with the judgment debtor. Against that order a revision was filed by the Judgment debtor, which too was dismissed on 6-4-1995. Thus the matter between the judgment debtor and Rama Devi has become final.

( 5 ) THE present proceedings have subsequently been instituted by the petitioner who claims to be the heir of the decree-holder alleging herself to be the sister of the decree- holder. The issue, therefore, which has arisen is between two persons claiming a right to represent the deceased decree holder. Neither the petitioner nor the respondent No. 2 is a party to the suit. In such a situation the dispute about the right of representation is not really between the parties or with even one of the parties to the suit but between two sets of persons claiming to represent one of the parties, namely, the plaintiff decree holder. It is a dispute about who is the legal representative. In such a situation the provisions of Section 47 are not applicable as that provision applies only to a dispute between parties to the suit. Sub-section (3) of section 47 provides that "where a question ar