JUDGMENT : Akshaya Kumar Rath, J. 1. The instant petition under Article 227 of the Constitution of India is to quash the order dated 25.1.2006 passed by the learned Civil Judge (Sr. Division), Bhadrak in T.S. No. 253 of 1991, whereby and whereunder, the learned trial court rejected the application of the petitioner dated 4.1.2006 to recall the order dated 6.12.2005. By order dated 6.12.2005, the learned trial court directed to hold an inquiry under Order 22 Rule 5 C.P.C. to determine the right of opposite party No. 1. The petitioner as plaintiff instituted a suit for partition impleading his brothers as defendants 1 and 2 and the purchasers of the suit property as defendants 3 to 50 in the court of the learned Civil Judge (Sr. Division), Bhadrak, which is registered as T.S. No. 253 of 1991. All the defendants, except defendant No. 41-opposite party No. 1 herein, have been set ex parte. During pendency of the suit, defendant No. 1 died on 23.7.1997. Defendant No. 41 claiming to be the adopted daughter of defendant No. 1 filed an application for substitution in place of defendant No. 1 on 28.1.1998. By order dated 6.12.2005, the learned trial court directed to hold an inquiry under Order 22 Rule 5 C.P.C to determine the right of defendant No. 41 for being substituted in place of deceased-defendant No. 1. Since the plaintiff disputed the claim of adoption, an application was filed to recall the order dated 6.12.2005 stating therein that an inquiry on the question of adoption will be lengthy and time consuming process. Thus, it is appropriate to take on record the plea taken by the defendant No. 41, objection filed by the plaintiff, frame an issue and decide the suit. The same was rejected by the learned trial court on 25.1.2006, which is impugned in this petition. 2. Heard Mr. D.P. Mohanty, learned counsel for the petitioner and Mr. M. Mohanty, learned counsel for the opposite party No. 1. 3. Mr. D.P. Mohanty, learned counsel for the petitioner submitted that determination of the question as to the legal representative of the defendant No. 1 is a lengthy and time consuming process. The same involves adduction of evidence, both oral and documentary. In view of the same, the said question may be framed as an issue, whereafter the trial court shall decide the said issue along with other issues. The same involves adduction of evidence, both oral and documentary. In view of the same, the said question may be framed as an issue, whereafter the trial court shall decide the said issue along with other issues. Per contra, Mr. M. Mohnaty, learned counsel for the opposite party No. 1 supported the impugned order. 4. The only question that arises for consideration in this case is when the defendant No. 1 died during pendency of the suit and an application for substitution of the legal heirs of deceased-defendant No. 1 has been filed, whether the Court shall determine the said question under Order 22 Rule 5 C.P.C. or defer the same, frame an issue and proceed with the trial of the suit? 5. Order 22 Rule 5 C.P.C. deals with determination of question as to legal representative. The said rule provides that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court. The word 'determine' cannot be equated with the word 'decide'. An inquiry in the matter of determination of legal representative under this rule is summary in nature. 6. In Sitraram Beura Vrs. Birakishore Beura, AIR 1977 Orissa 65, it has been held that if a dispute is raised as to whether any person is or is not the legal representative of the deceased party, it should be judicially determined by the court under Order 22, Rule 5 of the Code of Civil Procedure. In the said case, on the death of a party, substitution order was made under Order 22 Rule 3 without noticing all the parties by suppressing some material facts. When a petition was filed by the rival claimant claiming to be the legal heir, dispute was raised as to who was the legal representative of the deceased. This Court held that it was incumbent upon the court to have an enquiry as contemplated under Order 22 Rule 5 of the Code of Civil Procedure. The same view was reiterated in Sukanta Chandra Sahoo Vrs. J.K. Routray and others, 1984 (I) OLR-305. 7. In Netrananda Dehuri Vrs. This Court held that it was incumbent upon the court to have an enquiry as contemplated under Order 22 Rule 5 of the Code of Civil Procedure. The same view was reiterated in Sukanta Chandra Sahoo Vrs. J.K. Routray and others, 1984 (I) OLR-305. 7. In Netrananda Dehuri Vrs. Bhagirathi Dehuri and another, 1991 (II) OLR-323, after survey of the various decisions of different High Courts, this Court held that the rule requires the court to decide such a question forthwith, if it arises as to whether a particular person is legal representative of a deceased party. It is not permissible to be left open to be decided when the suit is heard. The order for substitution made after enquiry only entitles a person substituted to carry on the suit, but cannot be said to confer any right of heirship on property. The decision on such issue does not operate as res judicata. The ratio in the case of Netrananda (supra) applies with full force to the facts of this case. 8. Thus, the inescapable conclusion is that where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the court forthwith. It is not permissible to defer the said question to be decided in the suit by framing an issue. 9. There being no patent error and gross injustice in the view taken by the learned trial court, this Court is not inclined to interfere with the impugned order in exercise of its power for judicial superintendence under Article 227 of the Constitution of India. The petition, being devoid of any merit, is dismissed. Petition Dismissed