JUDGMENT 1. In these civil revisions the one important question raised for a decision is whether a decree for prohibitory injunction obtained against the defendants who were sued in a representative capacity is enforceable under Order XXI Rule 32 of the Code of Civil Procedure (for short 'the Code') against persons for who are not eo nomine parties to the suit but for whose benefit also the suit was defended ? Another question raised is as to the sufficiency of evidence let in by the first respondent/decree holder against the persons who are alleged to have wilfully disobeyed the decree so as to proceed against them. 2. The first respondent -decree holder filed O.S. No. 188 of 1999 in the Munsiff's Court, Erattupetta against the defendants, their associates and the general public of the locality trespassing into the plaint schedule property, committing waste therein or cutting open any new way from the said property. Considering the nature and character of the road referred to in the plaint schedule, the first respondent instituted the suit invoking Rule 8 of Order I of the Code, obtained leave of the court and made the necessary publication The court passed a decree in favour of the first respondent as prayed for (I am told that the judgment and decree are under challenge in S.A. No. 660 of 2008). 3. The first respondent filed E.P. No. 10 of 2004 alleging that JD No. 14 (who was not an eo nomine party in the suit) demolished the stone wall and opened a road in violation of the decree. The executing court passed Ext.A3, order dated 30.11.2006 directing JD No.14 to close down the newly constructed road by erecting a stone wall at a height of 6 feet across the road at the portion where it touches the plaint schedule property. Though JD No.14 challenged that order in revision, it was dismissed as per Ext.A4, order. Thereafter JD No.14 complied with Ext.A3, order. 4. The first respondent then filed E.P. No. 28 of 2010. He alleged that on 28.08.2010 at about 04:30 a.m., to the knowledge and with the assistance of JD No.14, JD Nos. 2, 18, 21 and 22 destroyed the stone wall (constructed by JD No. 14 pursuant to Ext.A3, order) and thus JD Nos. 2, 14, 18, 21 and 22 have wilfully disobeyed the decree of the court. He alleged that on 28.08.2010 at about 04:30 a.m., to the knowledge and with the assistance of JD No.14, JD Nos. 2, 18, 21 and 22 destroyed the stone wall (constructed by JD No. 14 pursuant to Ext.A3, order) and thus JD Nos. 2, 14, 18, 21 and 22 have wilfully disobeyed the decree of the court. The first respondent requested the executing court to proceed against those judgment debtors as provided under Rule 32 of Order XXI of the Code. JD No.14 contended that none of the other judgment debtors have done anything with his knowledge or assistance and that he is not aware as to what the other judgment debtors have done. He claimed that he is not responsible for whatever was allegedly done by the other judgment debtors. JD Nos.2, 18, 21 and 22 denied that they demolished the stone wall on 28.08.2010. 5. The son of the first respondent gave evidence as PW.1 and claimed to have witnessed the incident on 28.08.2010. PW2, the Advocate Commissioner proved Ext.C1. He reported in Ext.C1 the fact of demolition of the stone wall. The executing court, relying on the evidence of Pws 1 and 2 and Ext.C1 found that JD Nos. 2, 14, 18, 21 and 22 have wilfully disobeyed the decree of the court and directed their detention in the civil prison for seven days. They were also directed to reconstruct the demolished portion of the stone wall. The order dated 13.04.2012 in E.P. No. 21 of 2010 to that effect is under challenge in these civil revisions filed by JD Nos. 2 and 14. 6. JD Nos. 14 and 18 are not eo nomine parties to the suit. JD Nos. 2, 21 and 22 are parties to the suit. The first question raised is whether a decree for prohibitory injunction obtained in a representative suit could be enforced, invoking Rule 32 of Order XXI of the Code against persons who are not eo nomine parties to the suit ? The learned senior Advocate for JD Nos. 14 (petitioner in CRP. No. 235 of 2012), Sri. P.G. Parameswara Panicker has argued that invocation of Rule 32 of Order XXI as against those judgment debtors who are not eo nomine parties to the suit is not permissible under the law. The learned senior Advocate for JD Nos. 14 (petitioner in CRP. No. 235 of 2012), Sri. P.G. Parameswara Panicker has argued that invocation of Rule 32 of Order XXI as against those judgment debtors who are not eo nomine parties to the suit is not permissible under the law. According to the learned Senior Advocate, in a suit filed in a representative capacity there could be no decree personally against the general public, not to say about its enforcement against them under Rule 32 of Order XXI of the Code. The decree is enforceable only against persons who are eo nomine parties to it. Reliance is placed on the decisions in Kodia Goundar and another Vs. Velandi Goundar and others (AIR 1955 Madras 281), Soman and others Vs. Apputty and others (AIR 1988 Kerala 212), The Chirman, Tamilnadu Housing Board, Madras Vs. T.N. Ganapathi (AIR 1990 SC 642) and V.J. Thomas V. Pathrose Abraham and others ((2008)5 SCC 84). 7. The learned counsel for the first respondent, Sri. Rajeev V. Kurup has contended that the decree passed in a representative suit is binding on all persons for whose benefit the suit was defended by the eo nomine parties. Reliance is made on Sub-rule 6(2) of Rule 8 of Order I of the Code inserted by Amendment Act 104 of 1976. According to the learned counsel, if such an interpretation is not given to Sub-rule 6 of Rule 8 of Order I, the decree for injunction in a representative suit would become futile as the decree could not be enforced against persons for whose benefit also the suit was defended by the eo nomine parties to it notwithstanding its violation by them. Thus, persons having the the same interest as the defendants in the suit could violate the decree. According to the learned counsel, Sub-rule 6 of Rule 8 of Order I has to be interpreted in such a way as to give effect to the decree passed by the court in a representative suit. Reliance is placed on the decisions in Waryam Singha and others Vs. Sher Singh and others (AIR (29) 1942 Lahore 136), Bhola Prasad Vs. Srimati Jagpala (AIR 1955 Allahabad 384) and Jatindra Mohan Banerje and others Vs. Kali Charan Alias Kalipada Sarkar and others (AIR 1960 Calcutta 623). 8. Reliance is placed on the decisions in Waryam Singha and others Vs. Sher Singh and others (AIR (29) 1942 Lahore 136), Bhola Prasad Vs. Srimati Jagpala (AIR 1955 Allahabad 384) and Jatindra Mohan Banerje and others Vs. Kali Charan Alias Kalipada Sarkar and others (AIR 1960 Calcutta 623). 8. Sec.13 of the Code of Civil Procedure, 1877 (for short "The Code of 1877') which dealt with the rule of res judicata did not contain Explanation VI which was introduced in the Sec.11 of the Code of 1908. Explanation VI is as under: "Where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this Section, be deemed to claim under the person so litigating". Prior to the introduction of Explanation VI to Sec.11 of the Code of 1908, the question of application of the judgment in a representative suit as res judicata on persons interested in such right as litigated in the earlier suit did not arise. Explanation VI is intended to apply to Sec.11 of the Code. In view of the Explanation a judgment obtained in a representative suit in respect of a public right or of a private right claimed in common by the defendant and others would operate as re judicata on all persons interested in such right. 9. The Code of 1877 did not contain a provision like Order I, Rule 8. Order I, Rule 8 was introduced for the first time in the Code of 1908. Rule 8 of Order I of the Code of 1908 read as under: "One person may sue or defend on behalf of all in same interest -Where there are numerous persons having the same interest on one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the court shall in such case give, at the plaintiff's expense notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct." 10. But the court shall in such case give, at the plaintiff's expense notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct." 10. Sub-rule 6 was introduced in Rule 8 of Order I by the Amendment Act 104 of 1976 with effect from 01.2.1977. The said provision says: "A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted or defended as the case may be". 11. Sub-rule 6 of Rule 8 of Order I make it abundantly clear that a decree passed in a representative suit complying with the other provisions of Rule 8 of Order I of the Code is binding on all persons on whose behalf or for whose benefit the suit is instituted or defended, as the case may be. Even as the provisions of Rule 8 of Order I stood before the Amendment Act, 104 of 1076, it was intended that the decree in a representative suit was to be binding on all persons interested in the suit and on whose behalf the suit was instituted or defended, as the case may be. The provision was intended to remove the difficulty of adding in the suit as co-plaintiffs or co-defendants, as the case may be, numerous persons who are interested in the subject matter of the suit. The provision was intended to make all such persons bound by the decree when it is obtained after complying with other provisions of Rule 8 of Order I. 12. I have referred to the binding nature of a decree in a representative suit against all persons on whose behalf or for whose benefit such suit is instituted or defended by those on record and the incorporation of Sub-rule (6) to Rule 8 of Order I of the Code by the Amendment Act 104 of 1976. I have referred to the binding nature of a decree in a representative suit against all persons on whose behalf or for whose benefit such suit is instituted or defended by those on record and the incorporation of Sub-rule (6) to Rule 8 of Order I of the Code by the Amendment Act 104 of 1976. When such a decree is made binding on all the persons for whose benefit he suit is defended by the eo nomine parties in the suit, I think, it is meaningless to say that a decree obtained in a representative suit is binding on all persons whose interest are represented and for whose benefit the suit is defended by the parties on record, but the decree is not enforceable against them. The binding nature of the decree on persons who are not eo nomine parties to the suit but whose interest is represented and defended by the parties on record is that such decree is enforceable against such persons though not they are eo nomine parties to the suit. The enforceability of a decree for prohibitory injunction is by invoking Rule 32 of Order 21 of the Code. Such a decree is executable (obviously under Rule 32 of Order XXI of the Code) against persons not eo nomine parties to the suit but for the protection of whose interest the suit was defended by those on record. In a representative suit complying with the formalities provided under the law, all persons on whose behalf the suit is instituted or for whose benefit it is defended must be deemed to be parties. That is the whole purpose of providing for a representative suit in Rule 8 of Order I of the Code of 1908 and which is explicitly made clear by incorporating sub-rule (6) to Rule 8 by the Amending Act 104 of 1976. 13. The Full Bench of the Madras High Court in Kodia Goundar and another Vs. Velandi Goundar and others (supra) has taken the view that a decree obtained in a representative suit is not executable against persons who are not eo nomine parties. The Full Bench dissented from the decision of the Lahore High Court in Waryam Singha and others Vs. Sher Singh and others (supra) and placed reliance on the decisions in Srinivasa Aiyankar Vs. Aryar Srinivasa Aiynakar(10) 33 Madras 483, Sahib Thampi Vs. The Full Bench dissented from the decision of the Lahore High Court in Waryam Singha and others Vs. Sher Singh and others (supra) and placed reliance on the decisions in Srinivasa Aiyankar Vs. Aryar Srinivasa Aiynakar(10) 33 Madras 483, Sahib Thampi Vs. Hamid ((13) 36 Madras 414), Walker Vs Sur (1914-2 KB 930) and Hardie and Lane Limited Vs. Chiltern and others (1928 -1 KB 663). 14. In Soman and others Vs. Apputty and others (supra) a learned Judge of this court observed that a decree passed in a suit coming under Rule 8 of Order I, "may not be enforceable in an injunction suit personally against persons who are not eo nomine parties as held in Kodia Goundar and another Vs. Velandi Goundar and others". In The Chairman Tamilnadu Housing Board, Madras Vs. T.N. Ganapathi, in paragraph 7 reference was made to the Full Bench of the Madras High Court in Kodia Goundar and another Vs. Goundar and others. In V.J. Thomas Vs. Pathrose Abraham and others ((2008)5 SCC 84), in paragraph 13 it is observed as under: "A suit filed in terms of Order I Rule 8 should ordinarily be premised on the ground that the defendants represent the parties interested in the suit. The defendants in such suit, although, must be able to represent the public in general, but no personal decree can be passed against them. To what extent the original defendants were interested in the suit property at least in respect of the portion thereof is not known" 15. As against the above, there is Mool Chandra Jain Vs. Jagdish Chandra Joshi (AIR 1955 Allahabad 385) where, it is held that a decree for perpetual injunction in a representative suit under Order 1 Rule 8 of the Code can be binding on the parties not actually impleaded but represented by those on record. The same view is taken in Jatindra Mohan Banerje and others Vs. Kali Charan Alias Kalipada Sarkar and others (supra), dissenting from the Full Bench decision of the Madras High Court in Kodia Goundar and another Vs. Velandi Goundar and others. In Ahmad Adam sait and others Vs. The same view is taken in Jatindra Mohan Banerje and others Vs. Kali Charan Alias Kalipada Sarkar and others (supra), dissenting from the Full Bench decision of the Madras High Court in Kodia Goundar and another Vs. Velandi Goundar and others. In Ahmad Adam sait and others Vs. M.E. Makhri and others (AIR 1964 Supreme Court 107) it is held that in a representative suit brought under Sec.92 of the Code and a decree passed in such a suit, the law assumes that all persons who have the same interest as the plaintiffs in a representative suit were represented by the said plaintiffs and therefore are constructively barred by res judicata from re-agitating matters directly and substantially in issue in the said suit. A similar result follows if a suit is either brought under Rule 8 of Order I of the Code. In that case persons either suing or defending an action are doing so in a representative character, and so the decree passed in such suit binds all those whose interest were represented either by the plaintiffs or by the defendants. 16. It is relevant to note that the decisions (other than the decisions in Soman and others Vs. Apputty and others, The Chairman Tamilnadu Housing Board, Madras Vs. T.N. Ganapathi and V.J. Thomas Vs. Pathrose Abraham and others (supra)) are rendered at a time when sub-rule 6 of Rule 8 of Order I was not available in the Code. Those decisions are rendered without reference to the principle underlying sub-rule 6 of Rule 8 Order I. Instead, reference in those decisions was to Sec.146 of the Code dealing with the legal representatives to the parties to the litigation. 17. Notwithstanding that Sub-rule 6 of Rule 8 of Order I of the Code was not there in the Code of 1908, the Lahore High Court in Waryam Singha and others Vs. Sher Singh and others (AIR (29)1942 Lahore 136)held: "The second point for consideration is whether the decree for injunction can be executed against any of the proprietors excepting the seven persons who were chosen as representatives. The learned Senior Subordinate Judge has relied on two rulings of the Madras High Court referred to above but the second ruling merely follows the first one, namely, 12 Mad. 356 without any independent discussion of the matter. It would therefore be sufficient to consider the decision in 12 Mad. 356. The learned Senior Subordinate Judge has relied on two rulings of the Madras High Court referred to above but the second ruling merely follows the first one, namely, 12 Mad. 356 without any independent discussion of the matter. It would therefore be sufficient to consider the decision in 12 Mad. 356. The decree which was sought to be executed in that case as passed in the year 1840, that is, at a time when there was apparently no statutory provision corresponding to O.I., R.8, Civil P.C., in force. There was a dispute between two sects of Vaishnev Brahmins relating to the worship of an idol and the decree directed that one of the sects should not worship the idol in any house situated in a particular street. The decree was thus of a personal character. In the present instance the decree does involve rights to property, namely, shamilat land, and can be distinguished on this ground. I note that in the Madras case the execution was also held to be time-barred and consequently the remarks relating to the executability of a decree for injunction in the circumstances of the case were in the nature of obiter dicta. I may also add that I do not understand why a decree for injunction should not be executable against defendants who are represented by other persons selected to represent them under O.I., R.8, Civil P.C. The whole object of a representative suit of this kind would be defeated if it is held that a decree obtained in such a suit cannot be executed against any person except the chosen representatives. As pointed out in 24 Mad. 658 and 30 Mad. 215 in a suit of a representative character like this all the persons who are represented must be held to be parties as the decree obtained in such a suit is binding on all of them. The case might be different where the injunction obtained applies only to the persons who are chosen as representatives. But if the injunction apples not only to those persons but also to others who are represented by them, I see no good reason why the decree for injunction should not be executed against all of them." 18. The Division Bench of the Allahabad High Court has followed the above said decision in Mool Chandra Jain Vs. Jagdish Chandra Joshi (AIR 1955 Allahabad 385). The Division Bench of the Allahabad High Court has followed the above said decision in Mool Chandra Jain Vs. Jagdish Chandra Joshi (AIR 1955 Allahabad 385). There, reference was made to the decisions of the Madras High Court in Sahib Thampi Vs. Hamid and Srinivasa Aiyankar Vs. Aryar Srinivasa Aiynakar. Dissenting from the said decisions the Allahabad High Court held that whole purpose of a representative suit is that the decision in that suit should bind the persons who are not actually before the court as parties but who are allowed to be represented by those who are actually before the court as parties. The Division Bench also took the view that the decisions of the Madras High Court referred above were made on the facts of those cases. In Jatindra Mohan Banerje and others Vs. Kali Charan Alias Kalipada Sarkar and others (supra), reliance was made on the decisions in Waryam Singha and others Vs. Sher Singh and others (AIR 1942 Lahore 136) and Abdulla and another Vs. Parshotam Singhand others (AIR 1935 Lahore 33). The Calcutta High Court was not inclined to follow the decision of the Madras High Court in Kodia Goundar and another Vs. Velandi Goundar and others. The Calcutta High Court pointed out that the English decisions adverted to by the Full Bench of the Madras High Court in Kodia Goundar and another Vs. Velandi Goundar and others cannot apply to the facts situation since the English law did not encourage suits in a representative capacity but the Code provided so expressly (by Order 1, Rule 8). The Calcutta High Court pointed out that the definite law in this country (as to representative suits) is contrary to the principles laid down in the English cases as well as to their rules and hence those rules relied on by the Full Bench of the Madras High Court are not applicable. In the light of the discussion made above, I respectfully differ from the view taken by the Madras High Court. The decisions of the Lahore, Allahabad and Calcutta High Courts support the view I have taken. 19. I am confronted with the decision of this court in Soman and others Vs. Apputty and others (supra) where the view taken is that a decree for injunction in a representative suit may not be enforceable against persons who are not eo nomine parties. 19. I am confronted with the decision of this court in Soman and others Vs. Apputty and others (supra) where the view taken is that a decree for injunction in a representative suit may not be enforceable against persons who are not eo nomine parties. For two reasons, I am unable to follow that view -firstly, it is only an opinion expressed by the learned Judge which was not necessary for decision of the dispute involved in that case as is revealed by the observation in paragraph 12 of the decision that the said aspect of the matter is not relevant for the purpose (of deciding the controversy involved in that case) and secondly; the learned Judge has only referred to the decision in Kodia Goundar and Another Vs. Velandi Goundar and others. The other decisions referred above and which take a different view were not brought to the notice of the learned Judge. The decision in The Chairman Tamilnadu Housing Board, Madras Vs. T.N. Ganapathi (AIR 1990 SC 642) also cannot apply to the fact situation. I do not find anything in that decision against the view I have expressed above except a reference for certain other purposes to the decision in Kodia Goundar and another Vs. Velandi Goundar and others. That reference cannot mean that the dictum laid down in Kodia Goundar and another Vs. Velandi Goundar and others as to the enforceability of the decree in a representative suit against persons who are not eo nomine parties and for whose benefit the suit was defended, is approved by the Supreme Court. So too, the decision in V.J. Thomas Vs. Pathrose Abraham and others ((2008)5 SCC 84). That was the case where an ex parte decree was passed in a representative suit and some of the persons claiming to be interested in the subject matter sought their impleadment in the suit. The question considered was whether impleadment could be allowed ? It was contended in that case the publication of notice (pursuant to the order under Rule 8 of Order I of the Code) was made in newspapers which did not have wide circulation in the locality (where the impleading petitioners resided). In paragraph 12, the Supreme Court pointed out that the plaint was not before the court nor the application purported to have been filed by the applicant under Order I, Rule 8 of the Code. In paragraph 12, the Supreme Court pointed out that the plaint was not before the court nor the application purported to have been filed by the applicant under Order I, Rule 8 of the Code. It was also not clear on what basis respondents 3 to 5 were impleaded in that suit and in which capacity ? In paragraph 13, it is observed that "The defendants in such a suit although must be able to represent the general public but not personnel decree can be passed against them". To what extent the original defendants were interested in the suit property was not known. The observation made in paragraph 13 is in relation to the fact situation available before the Supreme Court. At any rate, that can only mean that there could be no personnel decree against those persons who are not eo nomine parties to the suit. That observation does not concern the binding nature or the enforceability of a decree passed in a representative suit against persons who are otherwise bound by the decree having the same interest as the defendants in the suit and for whose benefit the suit was defended by the defendants . 20. In the light of the above, I hold that a decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended though they are not eo nomine parties to the suit. I also hold that in case of wilful dis-obeyance of such a decree by those persons for whose benefit the suit was defended by the defendants, it is enforceable against them under Rule 32 of Order XXI of the Code. 21. Then the question is whether the finding of the executing court on the evidence that JD Nos. 2, 14, 21, 22 and 28 have wilfully disobeyed the decree could be sustained ? 22. The only evidence available is that of PW1, son of the first respondent. He stated in his proof affidavit that on 28.08.2010 at about 04:30 a.m. JD Nos. 2, 21, 22 and 22 demolished the stone wall with the knowledge of JD. No. 14. He did not say that he had seen the incident. But in cross-examination he claimed to have witnessed the incident and further, stated about the presence of JD. No.14 at the spot. 2, 21, 22 and 22 demolished the stone wall with the knowledge of JD. No. 14. He did not say that he had seen the incident. But in cross-examination he claimed to have witnessed the incident and further, stated about the presence of JD. No.14 at the spot. He claimed that along with him, one Chandran, Ashok Mathew and Devasia (who are cited as witnesses in the witness lists preferred by the first respondent) were present and they also witnessed the incident. Those witnesses were not examined. 23. In EP No. 28 of 2010, there is no mention of PW1 witnessing the incident. Even the presence of JD No. 14 at the spot is not specifically alleged in E.P. No. 28 of 2010. Instead, what is averred is only that with the knowledge and connivance of JD NO.14, JD Nos.2, 18, 21 and 22 demolished the stone wall. In the proof affidavit of PW.1 also, there is no reference to the presence of JD No.14 at the spot on the occasion. What PW1 stated in his cross-examination is an improvement. The time of the alleged demolition is 04:30 a.m. The occasion for PW.1 allegedly witnessing it is that he was about to go to Thiruvananthapuram. It is revealed from the evidence of PW.1 that of the persons who were allegedly with him at the time of the alleged incident, one is residing about 25 K.M. and another, about 60 K.M. (respectively) away from the place of alleged incident. No doubt, PW.1 has an explanation for their presence with him but that appears to be very doubtful. I must also notice that first respondent was not daring enough to examine any of the witnesses cited to prove the alleged incident. That none of JD Nos.2, 18, 21 and 22 has entered the witness box does not mean that the evidence of PW.1 could be accepted. I must also notice that though the first respondent is stated to have preferred Ext.A7, complaint to the local police, there also there is no reference to either the presence of JD. No.14 at the spot at the relevant time or PW.1 witnessing the alleged incident. Ext.A7, complaint makes no reference even to JD No.22. In the C.R.P. No. 235 of 2012 above circumstances, the interested version of PW.1 alone could not be accepted safely. No.14 at the spot at the relevant time or PW.1 witnessing the alleged incident. Ext.A7, complaint makes no reference even to JD No.22. In the C.R.P. No. 235 of 2012 above circumstances, the interested version of PW.1 alone could not be accepted safely. It required some corroboration for the evidence of PW.1 which is lacking. Hence, I am inclined to hold that the executing court was not right in acting upon the interested version of PW.1 alone. The finding of the executing court as to the involvement of JD Nos. 2, 14, 18, 21 and 22 in the alleged incident cannot be sustained. 24. True that only JD. Nos. 2 and 14 have challenged the impugned order. But, I have found that evidence of PW1 is not sufficient to enter a finding against JD Nos. 2,14, 18, 21 and 22. The order directs detention of JD Nos. 18, 21 and 22 also in the civil prison. Hence I am inclined to extend the benefit of the finding to JD. Nos. 18, 21 and 22 as well. In the result the civil revisions are allowed as under: 1. Order dated 13.04.2012 in E.P. No. 28 of 2010 in O.S. No. 188 of 1999 is set aside. 2. It is made clear that this order will not stand in the way the first respondent/decree holder seeking the assistance of the executing court to put up a wall as the decree permits, in view of Ext.C1 report.