Whether order passed in an inquiry under O 22 R 5 of CPC is a decree?

 In the present case, an application under Order XXII of the C.P.C. has been dismissed on the ground that the adoption deed was not executed in accordance with the Hindu Adoptions and Maintenance Act, 1956. The adjudication made by the trial court, in my opinion, does not amount to a decree as contemplated under Section 2(2) of the C.P.C. nor does it finally determine the question as to who is the legal representative of the deceased under Order XXII, Rule 5 of the C.P.C. In any case, an enquiry under Order XXII, Rule 5 of the C.P.C. is only summary in nature and is not an appealable order. The question whether a person could be permitted to be brought on the record as a legal representative of the deceased is only for the purpose of continuing with the proceedings that had already begun and any adjudication, arrived in the course of such enquiry under Order XXII, Rule 5 of the C.P.C. is not an adjudication contemplated under Section 2(2) of the C.P.C. Consequently, an order passed under Order XXII, Rule 5 of the C.P.C., being summary in nature, could not amount to a decree, as contemplated under Section 2(2) of the C.P.C. {Para 7}

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007.

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Whether the court has jurisdiction to question registered adoption deed in collateral proceeding?

 Coming to the merits of the case, I find that the lower appellate court had rejected the application on the ground that the adoption deed executed in favour of the applicant was not validly executed under the Hindu Adoptions and Maintenance Act, 1956. In my view, the lower appellate court had no jurisdiction to go into the validity and legality of the adoption deed which was executed and registered under the Hindu Adoption and Maintenance Act, in view of the provision of Section 16 of the said Act which reads as under:

16. Presumption as to registered documents relating to adoption. - Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. {Para 10}

11. The Supreme Court in the case of Mst. Deu and Anr. v. Laxmi Narayan and Ors. MANU/SC/1351/1998 : (1998)8SCC701 , held:

In view of Section 16 aforesaid whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the persons mentioned therein, the Court shall presume that the adoption has been made in compliance with the provisions of the said Act unless and until it is disproved. According to us, it was not open to the defendants of the said suit for partition to collaterally challenge the said registered deed of partition. In view of Section 16 of the aforesaid Act it was open to them to disprove such deed of adoption but for that they had to take independent proceeding.

12. In view of the aforesaid pronouncement of the Supreme Court, it is clear, that the lower appellate court had no Jurisdiction to question the validity and legality of a document which was registered and in view of the Section 16 of the said Act, it was open to the defendant to disapprove such deed of adoption in an independent proceedings.

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007

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