Shamsher Bahadur, J. - (1.) THE subject -matter of dispute in this execution appeal is a chopal in Mohalla Padhan in the town of Kaithal in respect of which a representative suit had been brought in the year 1937 under the provisions of Order 1, Rule 8 of the Code of Civil Procedure, on behalf of 23 residents of the locality. The representative suit was filed by three Plaintiffs Sadhu Ram, Moti Ram and Sagta for a declaration that the property in suit being a chopal was to be used by the residents jointly of Mohalla Padhan as they were its owners. It was also prayed that the Defendants, Data Ram and his son Malha Singh should be restrained from altering the condition of the chopal and obstructing the joint user of it by the residents of the Mohalla. This suit was compromised on 25th of February, 1937, and it was decreed that the chopal shall remain open to the joint user of all the residents of Mohalla Padhan.
(2.) NOTHING was heard about this matter till an application was made by the Respondents, Charanji Lal and Tara Chand, who were included in the list of 23 residents on whose behalf the original suit in a representative capacity was brought under Order 1, Rule 8, on 1st of December, 1959, that the judgment -debtors were altering the structure of the chopal for its conversion for their exclusive occupation. The objections filed by the judgment -debtors were dismissed by the Subordinate Judge and having failed in their appeal before the learned District Judge of Karnal, the judgment -debtors have again come in this Court in appeal. The first contention of the learned Counsel for the Appellant judgment -debtors is based an the fact which is not disputed that notices under Order 1, Rule 8 of the Code of Civil Procedure, were not served on the numerous Plaintiffs in the suit filed by the Respondents in 1937. As a consequence of the non -observance of the statutory provisions of Order 1, rule 8 it is argued that the entire decree based on a compromise becomes a nullity incapable of enforcement in execution proceedings. There can be no manner of doubt that the provision as to the issue of notices of the institution of the suit under Order 1, Rule 8 is a peremptory one. It would be s(sic)ent in support of this to say that under Rule 8 of Order 1: "whe(sic)ere are numerous persons having the same interest in 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 rubber of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. The object of serving notice on all the persons concerned is that as the judgment in such an action is binding on all the members of the class represented they should all be properly served before some one is allowed to represent them during the proceedings of the suit. As observed by their Lordships of the Privy Council in Kumaravelu Chettiar v. T.P. Ramaswami Ayyar, A.I.R. 1983 P.C. 183, it is of the essence of a representative suit "that the range of the estoppel be defined somewhere on the face of the proceedings". It is for the benefit of the persons who bring a representative suit or against whom such a suit is brought that the mandatory provision of notice has been made in the Code of Civil Procedure. The Defendants cannot in any event take benefit of the failure of the Court whose duty it was to issue notices on the 23 residents on whose behalf the suit was sought to be instituted. When a notice is not issued in accordance with the provisions of the Code, the decree passed ceases to be binding on the persons who have not actually been served. Both the Defendants Appellants having been served and on whose statement the compromise decree was passed cannot be heard to say that the decree is not binding on them, all the numerous Plaintiffs not having received notice of the suit. The advantage of such a defect can be derived only by the parties who were not served. The decree, in other words, remains | binding on the Defendants. In a Bench decision of the Calcutta High Court of Mukerji and Graham JJ. in Ismail Munshi v. Niamat Khan : A.I.R. 1927 Cal. 608, it was held that where a decree is passed after issue of a notice which is defective, "the decree is binding as against the persons who have appeared and contested the suit, irrespective as to whether the decree would bind the public or the other persons interested".
(3.) THE second submission of the learned Counsel for the Appellants is that the application for execution filed on 1st of December, 1959 was barred by time. It is urged that under Section 48 of the Code of Civil Procedure, the application for execution of the decree passed on 25th of February, 1937 (Exhibit D. H. 6) could not have been entertained, twelve years having expired therefrom. The obvious answer to this objection is that the decree was of a declaratory nature and execution was called for only if the judgment -debtors failed to honour its terms. It was only when the judgment -debtors had made attempts to alter the construction of the chopal which they were forbidden under the terms of the decree that a cause of action arose to file the application for execution. The appropriate provision in the Indian Limitation Act for such a situation is Article 181 which provides that applications for which no period of limitation is provided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure the time is three years from the date when the right to apply accrues. It is the failure of the judgment -debtors' observance of the terms of the decree that gave an occasion to the decree -holders to enforce the right. If it were otherwise the judgment -debtors could at their will disobey the decree after a period of 12 years with impunity. This would be a position which obviously calls tor redress and the Courts below have rightly applied article 181 of the Indian Limitation Act.;