Saji Koduvath, Advocate, Kottayam.

Answer in a nutshell

No specific provision in the CPC. High Courts differ in views.

Introduction

Order I rule 8 of the Code of Civil Procedure, 1908, enables the plaintiffs to file a suit in a representative capacity for the benefit of a class of (numerous) persons. Suits against similarly interested persons can also be brought under Order I rule 8 by suing one or a few representatives of such persons on behalf of others also. Law requires proper notice (including news-paper advertisement) to all such persons interested.

The object of Order I rule 8 is to avoid multiplicity of litigation.

In Narayanan v. Kurichitanam Educational Society, AIR 1959 Ker 379, it was pointed out that it would be difficult to prescribe a minimum number which would be sufficient to satisfy the expression ‘numerous’ as used in Order I, r. 8. It is a matter of discretion left to the court.

Read Blog: Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?

Whether O.I r.8 Decree is Res Judicata

 Whether the decree in such a suit operates as res judicata against the persons who are represented remains as a controversy.  In any event, by the insertion of Sub-rule (6) to rule 8 of Order I, in 1976, it became legitimate to say that the decree stands as res judicata. Sub-rule (6) lays down that a decree passed in a suit under rule 8 shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended.

Therefore, the view taken in Srinivasa Aiyankar v. Aryar Srinivasa Aiyankar, (1910) ILR 33 Mad 483 : 6 IC 229, that the decisions do not bind on those who were not actually (eo nominee)  parties (and hence not res judicata and not enforceable in execution)  does not hold good at present. This view in Srinivasa Aiyankar had been taken in following cases (prior to 1976) also:

• Sahib Thampi v. Hamid, 36 Mad. 414
• Walker v. Sur, 1914-2 KB 930
• Hardie and Lane Limited v. Chiltern, 1928-1 KB 663
• Kodia Goundar v. Velandi Goundar. AIR 1955 Mad 281

Whether O.I r.8 Decree is Enforceable in Execution

The enforceability of an injunction decree, under r. 32 of O. XXI, in a representative suit against the persons represented is yet to be resolved either by enactment, or by an authoritative decision taking note of the divergent views of various High Courts in this matter.

It is noteworthy that even when Sub-r. (6) of r. 8 of O. I was not available in the Code, it was observed in Waryam Singha v. Sher Singh, AIR 1942 Lah 136, that the decree for injunction could be executed against any of the persons who were represented under O. 1 r. 8 CPC; because,  all the persons who were represented must be held to be parties as the decree obtained in such a suit was binding on all of them. This view is taken in following cases also:

• Mool Chandra Jain v. Jagdish Chandra Joshi, AIR 1955 All 385
• Abdulla v. Parshotam Singh, AIR  1935 Lah 33
• Jatindra Mohan Banerje v. Kali Charan, AIR 1960 Cal 623

Relying on Shri V. J. Thomas v. Shri Pathrose Abraham, AIR 2008 SC 1503, and Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281,the Kerala High Court has in Narayanan V. Periyadan Narayanan Nair, 2021 (3) KHC 211 (FB) held that execution of a decree is not possible if he was not impleaded as a defendant. The Full Bench overruled James Vs. Mathew (ILR 2012-4 Ker 753, 2012-4 Ker 640, 2012-4 Ker LT 666, 2012-4 KHC 604 ), which held that a decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended, though they were not eo nomine parties to the suit; and that in case of wilful disobedience of such a decree by those persons for whose benefit the suit was defended, it is enforceable against them under r. 32 of O. XXI of the Code.

Theory of Revival of Decree of Injunction by a Separate Suit

The Madras High Court, in Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281, propounded a theory of ‘revival of injunction‘, in a representative suit, by a separate suit. It was observed as under:

“11. This principles that a decree for injunction cannot be extended so as to render those who are not ‘eo-nomine’ defendants liable for disobedience of the decree is based on sound and equitable grounds. Before any person could be proceeded against personally for disobedience of a decree of court, it must be shown that he was bound personally by the decree and obliged to obey such a decree. To entitle the decree-holder therefore to proceed against such persons who are not parties on record the injunction must be revived against them, which must be by a separate suit and in such a suit an opportunity will be afforded to them to raise appropriate defences. Without a revival therefore of the decree for injunction against these other persons, no proceedings in pursuance of the decree could be started against them.”  

Conclusion:

Enactment or Authoritative Decision is Essential on this matter. Because:

1. The principles laid down in Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281, as to ‘revival of injunction’ by a separate suit against the persons who were represented in the earlier litigation, for proceeding against them in execution, are quite logical and convincing.
2. But, the principles of law laid down in Kodia Goundar Vs. Velandi Goundar are not uniformly accepted. The main reason may be that there is no specific provision for such ‘revival of decree’, by a summary procedure or otherwise, in the CPC; and that r. 32 of O. XXI CPC can be invoked only if the Judgment Debtor “has had an opportunity of obeying the decree and has willfully failed to obey” it .
3. Equally, there is no specific provision in the CPC for the proposition that a decree for injunction obtained in a representative suit (despite the fact that ‘the decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended’) can be executed against those who were not eo-nominee parties.  It is also noteworthy that r. 32 of O. XXI of the Code specifically states that it is attracted only “Where the party against whom a decree …. for an injunction, has been passed …. .”

End Note:

Rule 32 of Order XXI CPC reads as under:

“32. Decree for specific performance for restitution of conjugal rights, or for an injunction.- (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it he decree may be enforced the case of decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.”