P. K. TRIPATHY, J. ( 1 ) THIS appeal by the Defendants 1 (a) to c1 (e) in O. S. No. 134 of 1977 of the Court of subordinate Judge, Puri (presently civil Judge (Sr. Division)), Puri is directed against the judgment and decree dated 21. 8. 1979 passed in that suit by allowing the claim of the plaintiffs/respondents 1 to 6. ( 2 ) PLAINTIFFS filed the suit in their representative capacity claiming to be representing the Suaras and Mahasuaras in the Temple of Sri Jagannath mahaprabhu, Puri. They brought the suit claiming 20 kheis' which according to them has been allowed to be appropriated by Mahasuaras as per the decision of the Administrator of sri Jagannath Temple, Puri vide order dated 4-9-1964 (Ext. 2) and the confirming judgment of the Appeal committee on 10-8-1977 (Ext. 4 ). As asserted by the plaintiffs, though suaras and Mahasuaras belong to the same community of Sebayats performing the same rights, duties and obligation from the time immemorial and duly recorded as such in the Record-of-rights prepared in that behalf and for that they being managing the affairs through the association of suaras and Mahasuaras termed as 'nijoga', yet the aforesaid orders of the temple Administrator and the Appeal committee has interfered with the right and entitlement of the whole community covered by the said 'nijoga'. Accordingly, inter alia, they have prayed for a decree for entitlement to the said 20 kheis' in favour of the Nijoga to be properly shared, by the said 'nijoga' and its members. ( 3 ) IN that suit plaintiffs made three persons as the defendants, namely, Sri Krushna Chandra Maha-suara as Defendant No. 1, the administrator of Sri Jagannath temple, Puri as Defendant No. 2 and sri Sri Jagannath Temple Managing committee as Defendant No. 3. It has been pleaded in the plaint as well as in an application under Order 1, Rule 8, C. P. C. filed seeking the leave of the court to allow the said Defendant No. 1 to represent himself and other mahasuaras who join hands with him in disputing the title of 'nijoga' to the said daily 'kheis'. As stated by learned counsel for the Plaintiffs/ Respondents, on 18. 2. 1978 order was passed by the trial court that service of notice under Order 1, Rule 8, C. P. C. was accepted as sufficient. As stated by learned counsel for the Plaintiffs/ Respondents, on 18. 2. 1978 order was passed by the trial court that service of notice under Order 1, Rule 8, C. P. C. was accepted as sufficient. It is also not disputed at the Bar that after such publication of such notice, one Chinta-mani Mahasuara and others filed application to be added as defendants, and their application being rejected by the Court below, they approached this court in Civil Revision No. 487 of 1978. On 5. 1. 1979 learned Single judge of this Court dismissed that revision and that decision is reported in Chintamani Mahasuar and others v. Kasinath Mahasuar. In that decision also this Court held that "the suit was filed on 12th December, 1977 and the requisite permission of the Court was obtained under Order 1, Rule 8, Civil procedure Code. " The hearing of the suit proceeded in which Defendant No. 1 filed a written statement contesting to the claim of the plaintiffs not only on his own behalf but also on behalf of the Mahasuaras. His defence plea, inter alia, was that Suaras and mahasuaras are not mutually inclusive and the Mahasuaras are exclusively entitled to the suit 'kheis' and the plaintiffs have no right to claim that 'kheis'. ( 4 ) IN course of hearing, both the parties led evidence in support of their respective pleas in their pleadings and when the suit was posted for hearing argument, on 19. 6. 1979 the trial court was intimated about the death of defendant No. 1 on 18. 6. 1979. Learned subordinate Judge passed order directing the plaintiffs to take steps to bring on record the L. Rs. of the deceased Defendant No. 1. On 22. 6. 1979 an application was filed with the prayer to substitute the present appellant as the L. Rs. of the deceased Defendant No. 1. That application was allowed ex-parte on 11. 7. 1979. On 11. 7. 1979 plaintiffs also filed an application for amendment of the plaint. On 16. 7. 1979 the aforesaid L. Rs. of Defendant No. 1 (i. e. the appellants) entered appearance and applied for time to file additional written statement. While allowing that prayer learned Subordinate Judge also allowed the prayer for amendment of the plaint. The aforesaid amendment was to substitute the word Defendant no. On 16. 7. 1979 the aforesaid L. Rs. of Defendant No. 1 (i. e. the appellants) entered appearance and applied for time to file additional written statement. While allowing that prayer learned Subordinate Judge also allowed the prayer for amendment of the plaint. The aforesaid amendment was to substitute the word Defendant no. 1 by describing him as 'late K. C. Mahasuara' in Paragraphs 2, 3, 21 and 30 of the plaint and also in claiming the reliefs against Defendants 1 (a) to he) and other Mahasuaras who have taken the 'kheis' as per Exts. 2 and 4. On 25. 7. 1979 the substituted defendants 1 (a) to 1 (e) (appellants )adopted the written statement filed by defendant No. 1 and on 3. 8. 1979 they declined to adduce any further evidence. Thus, on hearing argument from the parties on 6th, 7th and 9th august, 1979 the impugned judgment was delivered on 21. 8. 1979. ( 5 ) THIS Court has highlighted the aforesaid relevant facts with a view to consider the argument advanced regarding whether or not there has been due compliance to the provision in Order 1 Rule 8, C. P. C. inasmuch as while arguing on merit learned counsel for the appellants also argued that the impugned judgment and decree is liable to be set-aside for non-compliance with the provision in order 1, Rule 8, C. P. C. in its true sense either at the initial stage and also when Defendant No. 1 died. ( 6 ) MR. B. H. Mohanty, learned counsel for the appellants argued that the aforesaid defect in the trial court proceeding vitiates the whole trial and the impugned judgment and decree is liable to be set-aside and the suit should be remanded to be taken up from the stage of Order 1, Rule 8, c. P. C. Mr. S. Misra (2), learned counsel appearing for the defendant no. 2/respondent No. 7 advanced the argument supporting the aforesaid contention of the appellants. Mr. R. K, mohapatra, learned Senior Counsel appearing for some of the respondents (plaintiffs), however, argued that the matter relating to compliance of Order 1 Rule 8, C. P. C. at the stage of admission of the suit having been gone into and decided by this Court in the aforesaid Civil Revision, that question is no more open to be considered afresh. He further contended that after the death of Defendant No. 1 substitution of his widow and children as his L. Rs. even if not strictly in conformity with the provision of law under order 1 Rule 8, C. P. C. but by then the proceeding in the Court below being in a closing stage after being duly contested by Defendant No. 1 representing himself and other mahasuaras advancing a conflicting "claim then that of the plaintiffs, therefore, there was nothing more to be done in that suit. Hence, he argued that an old litigation of the year 1977 need not be given a new lease of life for such minor procedural lapses and the rights of the parties be adjudicated in accordance with law by this Court in this First Appeal. ( 7 ) BEING relevant it is also indicated here that in course of hearing of the appeal frequent reference was made by the parties to different entries in the Record-of-rights of Sri Jagannath Temple, Puri. but such entries were neither tendered in evidence by the parties nor those documents were admitted into evidence and marked as exhibits. On 14. 7. 2000, therefore, both the parties proposed and agreed to accept such documents as additional evidence in accordance with the provision under Order 41 Rule 27, c. P. C. This Court allowed the parties to file such documents. On 17. 7. 2000 appellants filed documents as per the list and those have been admitted in evidence vide Exts. AA-1 to LL-1. The rebuttal evidence filed by Plaintiffs/ respondents on that date has been marked as Exts. 43 to 49. ( 8 ) KEEPING in view the nature of the dispute and the nature of evidence involved and the convenience of the parties it resulted in prolonged hearing of the matter on several dates, but ultimately as agreed by both the parties the decision on the position of law regarding implication of Order 1 rule 8, C. P. C. , because of the aforesaid argument, was contended to be of paramount consideration. Thus, this court deals with and dispose of that issue and consequent upon the findings which is noted below, this court finds that notwithstanding oldness of the litigation the parties have to travel back to the court below to regularise not an irregularity but an illegality. Thus, this court deals with and dispose of that issue and consequent upon the findings which is noted below, this court finds that notwithstanding oldness of the litigation the parties have to travel back to the court below to regularise not an irregularity but an illegality. In that respect the exercise done by this Court in considering the evidence and getting the additional evidence, as it appears, will be an adding advantage to the court below to resolve the dispute. ( 9 ) AS indicated above, this judgment concludes with an order of remand for the following reasons:-the prominent issue as noted above is whether the appellants are competent persons to be substituted in place of Defendant No. 1 who was added as such for self and for the mahasuaras advancing a conflicting claim with the plaintiffs and if not what consequence follows from that. ( 10 ) THE provision in Order 1 Rule 8, C. P. C. implies that when there are numerous persons having the same interest in one suit one or more such persons, with the permission of the court, can sue or be sued or may defend such suit on behalf of or for the benefit of all persons so interested or in that respect the Court may also issue a suo motu direction in the same manner. That is Sub-rule (1)of Rule 8. Thereafter, sub-rule (2)provides the procedure that where a permission is sought for or a direction is given under sub-rule (1) notice of the institution of the suit be given to all persons so interested at the plaintiffs' expenses either by personal service and when for reasons to be recorded such service is not reasonable practically then by public advertisement as the Court in each case may direct. The aforesaid provision is resorted to with the object to avoid delay, harassment and unnecessary expenses to the parties and to save public time in notifying others having same interest-in the subject matter of dispute in the suit. Thus, the aforesaid provision is an exception to the general rule that all persons interested in the subject matter of the suit should be made parties to it so that the dispute may be finally decided. Thus, the aforesaid provision is an exception to the general rule that all persons interested in the subject matter of the suit should be made parties to it so that the dispute may be finally decided. That is the fundamental philosophy behind the provision in Order 1, Rule 8, C. P. C, Learned counsel appearing for the parties have not disputed to the aforesaid purpose of the said law. Mr. Mohanty, learned counsel for the appellants stated that there is no material on record regarding due publication of the notice under Order 1, Rule 8, C. P. C. as per the direction of learned Subordinate judge and, therefore, mere noting in the order sheet regarding due publication of notice indicates that there was no due application of mind by learned Subordinate Judge and mechanically he passed that order in allowing the application under Order 1, Rule 8, C. P. C. On this issue this court is not interested, not being necessary, to make a detailed discussion either on the provision of law or on the factual aspect inasmuch as this Court has already dealt with that matter in the Civil Revision (as noted in paragraph 3 of this judgment ). The observation of this Court quoted in that paragraph is sufficient to hold that at the stage of admission of the suit, requisite permission of the Court was obtained under Order 1, Rule 8, c. P. C. to permit deceased Defendant no. 1 to represent the Mahasuaras having conflicting claim against plaintiffs. Thus, Defendant No. 1 was duly representing his own interest as a Mahasuara and also the interest of other Mahasuaras who have a conflicting claim from that of the plaintiffs relating to the suit 'kheis'. Therefore, defendant No. 1 was not only defending his own interest but also defending the interest of the whole community of the Mahasuaras who had a conflicting claim over the suit 'kheis'. ( 11 ) WHEN the status of defendant no. 1 stood thus, was it not obligatory on the part of the plaintiffs to substitute a person to represent such Mahasuaras (having conflicting claim) or was the plaintiffs absolve from the said responsibility by merely bringing the widow and children of defendant No. 1 as the legal representatives? That is the second contention of the appellants in challenging the impugned decree. That is the second contention of the appellants in challenging the impugned decree. ( 12 ) AT this juncture, it is relevant to refer to certain citations relied on by the parties. The appellants have relied on the cases of Radhamohan media and another v. Basudeb Khuntia and others; Madan Senapati alias madan Mohan Senapati v. Surendra dehury and others; Sukadev Tapaswai and others v. Sidheswar Mahadev Bije silod and others; Harihar Jena and others v. Bhagabat Jena and others; lakhana Nayak and another v. Basudev Swamy and others and Puma chandra Panigrahi v. Baidya Jani and others. In all these decisions it is reiterated that a notice in accordance with the provision in Order 1, Rule e (2),c. P. C. is mandatory in nature and a decree is liable to be set aside if the said mandatory provision is not complied with. In" Purna Chandra panigrahi (supra), a Division Bench of this Court also held that even if the suit was filed by the plaintiffs in representative capacity and in the court below they fail to prove their case for obtaining proper relief, yet such decree is liable to be set aside if the provision in Order 1, Rule 8 (2 ). C. P. C. was not properly complied with by serving due notice or proclamation as provided in the law. Sri Srinibas mishra (2), learned counsel for respondent No. 7 relied on the case of Balaram Palei and others v. Collector, puri and others in which on a reference by the Single Bench a Division Bench of this Court considering the interpretation of sub-rules (3) and (5)under Order 1 Rule 8. C. P. C. also approved the ratio in the case of chintamani Mahasuar and others v. Kasinath Mahasuar (supra ). Similarly, mr. R. K. Mohapatra has referred to and relied upon certain reported decisions. In Ahmad Adam Sait and others v. M. E. Makhri and others, while considering the plea of resjudicata the apex Court held that a previous decree is binding on the community if that was duly represented either in a suit under section 92, C. P. C. which stands at par with Order 1 Rule 8, C. P. C. In paragraph 17 their Lordships held as follows:-" (17) A similar result follows if a suit is either brought or defended under Order 1 Rule 8. In that case, persons either suing or defending an action are doing so in a representative character, and so, the decree passed in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendants. Thus, it is clear that in determining the question about the effect of a decree passed in a representative suit, it is essential to enquire which interests were represented by the plaintiffs or the defendants. If the decree was passed in a suit under S. 92, it will become necessary to examine the plaint in order to decide in what character the plaintiffs had sued and what interests they had claimed. If- a suit is brought under Order 1, rule 8, the same process will have to be adopted and if a suit is defended under Order 1, Rule 8, the plea taken by the defendants will have to be examined with a view to decide which interests the defendants purported to defend in common with others. The decision of this question would be material in determining the correctness of the argument urged by Mr. Setalvad before us. "in Charan Singh and another v. Darshan Singh and others and Raja anand Rao v. Ramdas Daduram and others, it was held that if the plaintiffs filing the suit in the representative capacity are represented by more than one person, then on the death of one of such representatives the suit shall not stand abated. ( 13 ) IN Alagappa Chettiar and others v. Muthiah Chettiar, a Division bench case, the leading judgment is of no relevance, whereas in the differing judgment by Justice Aiyar (as his Lordship then was) it was said that in a suit brought under section 14 of the Religious Endowments Act (20 of 1863) the leave obtained is equivalent to that of S. 92 of C. P. C. which stands at par with the provision under Order 1, Rule 8. C. P. C. In Adhikari Naik v. Sadhu Charan Biswal and others, a suit brought in the representative capacity by the plaintiff was enunciated to be abandoned by the said plaintiff. He was representating the Sabar community of that locality. When the petitioner filed an application to prosecute the suit as plaintiff, that was rejected by the Subordinate Judge. C. P. C. In Adhikari Naik v. Sadhu Charan Biswal and others, a suit brought in the representative capacity by the plaintiff was enunciated to be abandoned by the said plaintiff. He was representating the Sabar community of that locality. When the petitioner filed an application to prosecute the suit as plaintiff, that was rejected by the Subordinate Judge. Keeping in view the provisions in Order i, Rule 8, C. P. C. and particularly Sub-rules (3) to (6), this Court directed for petitioner's inclusion as the plaintiff. ( 14 ) MR. Srinivas Misra (2) also relied on the case of Maguni Swain and others v. Bareswar Deb and others. A single Bench of this Court held that a suit of the representative nature does not abate when the representatives appearing as defendants are more than one. A similar view has been expressed in the case of Fazal Rahim Khan and others v. Hussaina and others. The aforesaid ratio provides sufficient guidance to resolve the dispute on the question raised by the appellants that whether their substitution as legal representative of deceased defendant no. 1 is sufficient to retain the representative character of the suit. ( 15 ) IN the case of Mohamed Kanni rowther and another v. Naina Mahomed Rowther and another which has been relied on by Mr. R. K. Mohapatra. the sole plaintiff filing the suit in representative capacity died and thereafter an application was filed for substitution beyond the period as provided in Order 22 with the corresponding provision in Limitation Act. While in seisin of that matter, the madras High Court held that the suit being a representative suit, there could be no abatement under Order 22, c. P. C. by reason of the death of the sole plaintiff. On the death of that plaintiff (who filed the suit representing the community) any person on whose behalf that suit was filed can apply to the Court to be added as plaintiff for continuing the suit and there is no Article in the Limitation act prescribing the period of limitation within which such an application should be filed. Therefore, following the view of Sadasiva Iyer, J in the case of Krishnaswami Iyer v. Seethalakshmi ammal, learned Judge held that the residuary Article i. e. . Therefore, following the view of Sadasiva Iyer, J in the case of Krishnaswami Iyer v. Seethalakshmi ammal, learned Judge held that the residuary Article i. e. . Article 181 of the limitation Act (the Old act which corresponds to Article 137 of the limitation Act, 1963) fixing the period of three years would apply to such an application. In that context, their lordships further held that though the suit is a representative suit for the purpose of making the whole community bound by the decision even in the suit it cannot be said that the other members of that community were eo nomine plaintiff on record so that the Court can dismiss the suit for default on account of non-appearance of any of them. ( 16 ) THOUGH on a different context but the ratio in the above quoted cases is consistent with the principle followed and law interpreted by this court in the case of Maguni Swain (supra) and Ahikari Naik (supra ). ( 17 ) THE provision of law as it exists and the interpretation of the same by the above referred decisions of this Court and the different High courts lead to irresistible conclusion that on the death of the sole defendant who was eo nomine representing the mahasuaras having an adverse claim against the plaintiff and therefore on his death there should be substitution of another person to represent the community with due permission from the Court in accordance with the provision in sub-rules (1) and (2) of rule 8 of Order 1 and with due service of notice in that respect on the persons who shall be bound by that decree. In such a case the widow and the children of the deceased defendant may have a claim over the property which the defendant was entitled to on his personal capacity but in the absence of any permission from the court such person cannot automatically represent the community. In that respect, requisite steps being not taken the decree passed in favour of the plaintiffs shall have no binding effect on any other Mahasuaras who have a conflicting claim against the plaintiffs. Under such circumstance, if the judgment and decree shall be allowed to stand as it stands now then the purpose of filing the representative suit by the plaintiff will be totally frustrated. Under such circumstance, if the judgment and decree shall be allowed to stand as it stands now then the purpose of filing the representative suit by the plaintiff will be totally frustrated. Since the decision on the subject matter of dispute has the effect of affecting the group of Sebayats either belonging to the plaintiffs' community or the defendants community, therefore, even if there has been a delay for which nobody else than the inaccurate legal advice to the plaintiffs is responsible, the decree is liable to be set-aside and the suit has to be remanded to the stage where it was on the date of death of defendant No. 1. ( 18 ) IN view of the aforesaid remand order it is observed that if properly constituted applications shall be filed within 30 days from the date of this judgment for substitution after setting aside the abatement and delay, then the delay accrued in the meantime, if properly applied for, be condoned. The application relating to order 1 Rule 8, C. P. C. if filed for substitution by eo nomine that be considered by the lower court with due application of mind to the facts and provisions of law. In that respect, the above noted decisions, relied upon by the parties, shall provide sufficient guidance. ( 19 ) IN the result, the impugned judgment and decree are set-aside and the suit is remanded for disposal in accordance with law and the aforesaid observation. The appeal is accordingly allowed. In the peculiar facts and circumstances of this case, parties are directed to bear their respective costs of litigation in this forum. The additional evidence which has been received in this Court be transmitted to the court below with appropriate forwarding letter. Since the suit is an old one, learned Civil Judge (Senior division) shall see to its expeditious disposal by avoiding grant of undue long adjournments to the parties. Registry is directed to send back the. L. C. R immediately and preferably within ten days. Appeal allowed. Matter remanded.