M.V. NARAYANAN Vs. PERIYADAN NARAYANAN NAIR

JUDGEMENT

(1.) Is an appeal preferred against a decree passed in a representative suit incompetent, without making a further publication under sub-rule (2) of Rule 8 of Order I of the Code of Civil Procedure, hereinafter referred to as 'the CPC', is the precise question posed for consideration. This question came for our consideration by way of a reference made initially by a learned Single Judge.

(2.) Defendants 1 and 2 in O.S.No.357/1999 of the Munsiff's Court, Payyannur are the appellants in R.S.A.No.275/2012 and defendants 3 and 4 are the appellants in R.S.A. No.96/2015. They were impleaded in the suit in representative capacity representing the entire members of 'Maniyani' and 'Navudiya' communities of Karivellur village, respectively.

(3.) When the appeals had come up for final hearing before the learned Single Judge, it was argued that the suits were instituted by invoking the provision under Order I, Rule 8 CPC, but the same procedure was not followed before the appellate court and thus it was urged that the appeals were incompetent. In support of the contention the learned counsel for the appellants placed reliance on the decision reported in Radha K.S. v. Sadasivan and another [2017 (1) KHC 118 : 2017 (1) KLT 102]. But the learned Single Judge doubted the correctness of the decision in Radha, cited supra. We may hasten to state here that going by the well-nigh settled position a learned Single Judge cannot doubt the correctness of a Division Bench decision on the subject and reference is possible in such situation by a learned Single Judge only if there is a conflicting decision by another bench of co-equal strength on the subject. Still, we are inclined to answer the reference as the reasons for reference were fully endorsed by a Division Bench, when the matter came up for consideration before the Division Bench.