Is Decree in a Representative Suit (OI R8 CPC) Enforceable Against Persons Not Eo-Nomine Parties?

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.

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 …. .”

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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.”

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

• Res Judicata and Constructive Res Judicata
• Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
• Best Evidence Rule in Indian Law
• Civil Rights and Jurisdiction of Civil Courts
• Pleadings Should be Specific; Why?
• Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
• Res Judicata and Constructive Res Judicata
• Modes of Proof of Documents
• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS
• OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, Order Without Jurisdiction and Sham Transactions
• When ‘Possession Follows Title’; When ‘Title Follows Possession’?
• Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala
• Can Courts Award Interest on Equitable Grounds?
• Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
• Sec. 91 CPC and Suits Against Wrongful Acts
• The Law and Principles of Mandatory Injunction
• Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
• Unstamped & Unregistered Documents and Collateral Purpose
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
• Adverse Possession: An Evolving Concept

Evidence Act

• Oral Evidence on Contents of Document, Irrelevant
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B Evidence Act.
• OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Presumptions on Documents and Truth of its Contents
• Best Evidence Rule in Indian Law
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Notary-Attested Documents: Presumption, Rebuttable
• Significance of Scientific Evidence in Judicial Process
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Presumptions on Registered Documents & Collateral Purpose
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses
• Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation

Constitution

• Why No Reservation to Muslim and Christian SCs/STs (Dalits)? What are the Counter Arguments?
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Judicial & Legislative Activism in India: Principles and Instances
• Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
• Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
• Article 370: Is There Little Chance for Supreme Court Interference
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
• CAA Challenge: Divergent Views
• Secularism & Freedom of Religion in Indian Panorama
• Can Legislature Overpower Court Decisions by an Enactment?

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?

Easement

• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Club/Society/Trust

• How to Sue Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs of a Club or Society
• Public & Private Trusts in India
• Legal Personality of Trustees and Office Bearers of Societies
• Incidents of Trust in Clubs and Societies.
• Management of Societies and Clubs, And Powers of General Body and Governing Body
• Court Interference in Election Process
• What is Trust in Indian Law?
• Vesting of Property in Societies and Clubs
• Vesting of Property in Trusts
• Clubs and Societies, Bye Laws Fundamental
• Juristic Personality of Societies and Clubs
• Societies and Branches
• Effect of Registration of Societies and Incorporation of Clubs
• Clubs and Societies: General Features
• Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership.