JUDGMENT
M.M. Kumar, J.
1. Tills revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for short ‘the Code’) is directed against the order dated 30.9.1981 passed by the Executive Court, Sangrur, rejecting the prayer of the petitioners for impleadment of legal representatives of Amar Dass, Chela Bishan Dass, Dera Jai Ram Dass, Mandi Wall Gali, Sangrur (decree holder).
2. Brief facts necessary to solve the legal controversy raised in this petition may briefly be noticed. One Amar Dass, decree holder tiled a civil suit which was registered as Civil Suit No. 88 dated 25.5,1977 seeking the relief of permanent injunction restraining defendants from interfering in his possession and also from taking forcible possession of the suit land. On 17.5.1978, the suit was decreed by the trial court and defendants were restrained from taking forcible possession in respect of the suit land except in process of law. The suit land has been detailed in the head note of the plaint. The appeal filed before the learned Additional District Judge against the afore-mentioned judgment and decree was also dismissed on 19.9.1979. Thereafter afore-mentioned decree holder Amar Dass filed execution application under Order XXI Rule 32 of the Code on 30.10.1979 alleging that the respondent-judgment debtors have been trying to obstruct his possession. However, the decree holder Amar Dass died on 21.12.1979.
3. After the death of the decree holder Amar Dass his three sons namely Pawan Ku-mar Dass, Paramjit Kumar Dass and Ranjit Kumar Dass filed an application on 31.10.1979 claiming that they were legal representatives of the deceased decree holder. It was averred in the application that the decree holder had executed a registered Will dated 20.6.1979 and had appointed Pawan Kumar Dass, Paramjit Kumar Dass and Ranjit Kumar Dass as Mohatmim, Kuthari and Bhandari respectively of Dera Baba Jai Ram Dass. It was also asserted that Bekh of Bairagi and Sadhus in its assembly on 2.1.1980 had confirmed Pawan Kumar Dass as Mohatmim Mahant of the Dera. It is still further claimed that deceased decree holder, in a regular ceremony appointed Pawan Kumar Dass. Paramjit Kumar Dass and Ranjit Kumar Dass as Chclas conferring upon them the status of Mohatmim, Kuthari and Bhandari. With regard to possession, the petitioners claimed that Pawan Kumar Dass was in possession of the suit land as Mahant Mohatmim and other two petitioners help him in the administration of Dera. The judgment debtor-respondent (for brevity the Judgment DebtorO controverted the averments made by the petitioners by filing reply. However, there was no specific averment denying the possession of the petitioners.
4. The executing Court framed an issue to determined the question whether the petitioners were the legal representatives of deceased decree holder Amar Dass and after recording evidence returned a finding that the petitioners could not be considered as legal representatives of the deceased Amar Dass decree holder. The finding of the trial Court reads as under:
“The present applicant is the execution application filed by Amar Dass on the basis of the decree obtained by him against JDs. In this decree Amar Dass was held not to be the Chela of Bishan Dass. Amar Dass did not plead in the suit that he was the Mahant of the Dera. He filed the suit only being the chela of Bishan Dass. Bishan Dass had expired much earlier than the filing of the suit on 25.5.76. Had Amar Dass been installed as the Mahant of the Dera before 25.5.76 after the death of Bishan Dass, it was automatic that Amar Dass had filed the suit as a Mahant of the Dera and not as the chela of the previous Mahant Bishan Dass. Since Amar Dass did not file the suit as a Mahant and only filed the same as a Chela, it would be axiomatic that while presenting the suit on 25.5.76, he was not the Mahant of the Dera but claiming himself only to be a chela, presented the suit. The office of Mahant is greater than the line of a Chela and no one, if he is Mahant after the death of the previous Mahant, would write himself only as a Chela. Amar Dass chose to be true to his Guru and the Gaddi and hence he truthfully described himself only as the Chela and he being not the Mahant did not write himself to be a Mahant. IN this ring of truth lies the solemnity that Amar Dass was never made a Mahant by the Bekh after the death of Bishan Dass and if that be so, it would not give any right to Amar Dass to bring chelas in the order without being first a Mahant of the Dera. This takes the case of the applicants out of its snails and it is not possible to hold that they are the LRs of Dera of which Amar Dass not the Mahant. He (Amar Dass) being not the Mahant of the Dera, he was not authorised to baptize chelas. An elder Chela cannot have junior Chelas and it is the Mahant alone who can baptize chelas in the order.”
The reasoning adopted by the executing Court seeks to determine the cognate rights of the petitioners namely as to whether petitioner No. 1 Pawan Kumar Dass could be assumed to be legally nominated Mahant Mohtmim or could the other petitioners be considered as Kuthari and Bhandari.
5. I have heard Sh, Arun Palli, learned counsel for the respondents-Judgment-debtor and no one has put in appearance on behalf of the petitioners.
6. The sole contention raised by Shri Arun Palli, Advocate, in support of the impugned order is that once decree has been modified by the appellate Court reversing the finding that Amar Dass was merely a chela and was never nominated as Mahant Mohat-mim and that he could not have possibly any power to make someone as his chela then the petitioners would have no right to become the legal heir after the death of Amar Dass, decree holder. He vehemently argued that rights of the petitioner would be dependent on the status of the deceased decree holder and they would step in the shoes of the deceased decree holder only after the deceased himself could be held to be a Mahant Mohatmim.
7. I have thoughtfully considered the submissions made by the learned counsel for the judgment-debtor and after perusing the record, I do not feel persuaded to agree with the same.
8. The mere fact that the appellate Court in its order dated 19.7.1979 has recorded a finding that Amar Dass was not ever installed as Mahant Mohatmim and hence he could not have nominated any body as his chela much less Mahant Mohatmrm would not be relevant for the purposes of determining the controversy in issue because the decree is for permanent injunction restraining judgment debtors from interfering in their possession or taking forcible possession of the suit land. Moreover, the appellate Courts has maintained the decree although it has recorded a finding against Amar Dass with regard to his installation as Mahant Mohatmim.
9. In accordance with the provisions of Order XXI Rule 16 read with Section 146 of the Code, on the death of a decree holder his legal representative could be substituted in his place. It is further clear from the definition of expression legal representative given in Section 2(11) of the Code that any person who intermeddles with the estate of the deceased would be a legal heir. Provisions of Section 146 and Order XXI Rule 16 and the definition of expression ‘legal representative’ as given in Section 2(11) of the Code are reproduced here under:
“146. Proceedings by or against representatives.- Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him.”
Order XXI, Rule 16.
Application for execution by transferee of decree.-
Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree holder to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the applications were made by such decree-holder:
Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard objections (if any) to its execution:
Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the orders. Explanation.- Nothing in this rule shall affect the provisions of Section 146, and a transferee of rights in the property, which is subject-matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.”
Section 2(11)
“legal representative” means any 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.”
10. A conjoint reading of the afore-mentioned provisions makes it patent that inter-meddler is a person who deals with the estate of the deceased. It is also clear that a legal representative on the death of a decree holder can move an application for his impleadment as such as has been done in this case. The requirement of law for successfully becoming legal representative is that they should show by leading evidence that they were intermeddler. In other words, some proofs should come on the record to the effect that such a person used to deal with the estate of the deceased.
11. A perusal of statements made by various witnesses would show that the petitioners used to live with their father Amar Dass and alongwith him they were also in possession. The allegation in the execution application filed under Order XXI Rule 32 of the Code by Amar Dass, decree holder, is when an attempt was made by the judgment debtors to dispossess him, Pawan Kumar Dass was present. The names of other petitioners have also come on record that they used to deal with the estate of the deceased. The Will executed by the deceased and the photographs, adequately prove that they were intermeddles. Therefore, the approach adopted by the executing Court ousting the petitioners from being impleaded as legal representatives proceeds on irrelevant consideration in as much as the suit of Amar Dass, decree holder, was not to seek a declaration about his status but was a suit for permanent injunction restraining the judgment debtors from interfering in his possession and also from taking forcible possession of the suit land. It is also pertinent to mention that the right of possession is inheritable right and the petitioner were within their right to claim the benefit of the decree.
12. In view, of the reasons given above, this revision petition is allowed and the order of the executing Court dated 30.9.1981 is set aside. The application of the petitioners to be impleaded as legal representatives is allowed. It is directed that execution proceedings may now be taken up and be concluded as expeditiously as possible prenatally
within a period of six, months.