Appellate court cannot act as an appellate court in revision proceedings

The Supreme Court of India in the matter of Varadrajan vs. Kanakavali & Ors. (Civil Appeal No. 5673/2009) dated 22.01.2020 reiterated that an order passed by a subordinate court can be interfered with only if it exercises its jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity.

Facts
One Umadevi sought execution of the decree passed in her favour in 1989, but she died on 22nd July 1999. Th appellant who was the son of Umadevi’s younger sister filed an application to execute the decree as her legal representative on the basis of a Will dated 16th July 1999. The said application was allowed by the Executing Court in 2004.
The Appellant filed an application for eviction of the respondent and to deliver vacant possession of the premises. In response to such petition, the Respondent asserted that the Will is forged, and that the son of a sister was not a legal heir as per Section 15 of the Hindu Succession Act. The Executing Court decided the application in 2005 and held that the Will stand proved. It was further held that the Appellant was the legal representative of the deceased and was entitled to execute the decree.
The High Court held that the Executing Court was the competent and proper Court to determine the validity of the Will as well as the legatee under a Will can be construed as a legal representative and seek to execute of the decree. However, the High Court found that the execution of the Will was surrounded by suspicious circumstances. The High Court in revisional jurisdiction interfered with the findings of fact recorded by the Executing Court in respect of execution of Will arrived at after considering the evidence led by the parties. Hence the appeal.
Issue
Whether the High Court was right in interfering with the order passed by the Executing Court in revision proceedings as if it was the first court of appeal?
Ratio
The Apex Court observed that the view of High Court is not sustainable in law. The Court observed that High Court interfered with the order passed by the Executing Court as if it was acting as the first court of appeal. An order passed by a subordinate court can be interfered with only if it exercises its jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity.
The Apex Court held that the conflicting claims of legal representatives can be decided in execution proceedings in view of the principles of Rule 5 of Order XXII. Also Order XXII of the Code is applicable to the pending proceedings in a suit.
In view of the Court the normal principle arising in a suit before the decree is passed is that the legal representatives are to be brought on record within a particular period and if not, the suit could abate. However, this is not applicable to cases of death of the decree-holder or the judgment-debtor in execution proceedings. The exemption provided in the aforesaid rule is that where a party to an execution proceeding dies during its pendency, provisions as to abatement do not apply. The Rule is, therefore, for the benefit of the decree-holder, for his heirs need not take steps for substitution, but may apply immediately or at any time while the proceeding is pending and to carry on the proceeding or they may file a fresh execution application.
In the instant case the appellant claims to be the legal representative of Umadevi based on the Will executed by her. The Court observed that the Umadevi filed the execution petition but after her death, the appellant has filed an application to continue with the execution. In the absence of any rival claimant claiming to be the legal representative of the deceased decree holder, the High Court was not justified in setting aside the order of the Executing Court, when in terms of Order XXII Rule 5 of the Code, the jurisdiction to determine who is a legal heir is summary in nature.