ORDER

Leave granted.

Head learned counsel on both sides.

2. This appeal by special leave arises from the judgment and order dated July 16, 1991 made in C.R. No. 476/88 of the Madhya Pradesh High Court, Jabalpur Bench. The Division Bench held that the objection to the maintainability of representative suit without leave of the Court under Order 1 Rule 8 of the Code of Civil Procedure, 1908 (Code) is sustainable. The decree of the Court is a nullity and non est. Therefore, Explanation VI to Section 11 is not attracted to the facts in this case. Accordingly, the execution is not maintainable. Calling in question the finding and decision of the High Court, this appeal by special leave has been filed.

3. The facts are fairly not in dispute. The appellant laid Civil Suit No. 1A/87 in the court of District Judge, Panna in Madhya Pradesh for eviction of Rashtriya Swayam Sewak Sangh through its Manager, Shri Gorelal Soni, its President, Shri Shiv Behari Srivastava, Advocate and the Head Master of Saraswati Shishu Mandir, Panna by name Ram Kripal Chaubey, as a member of the Sangh. The claim was based on the title and for eviction of the Sangh and its office bearers on the premise that it had no authority to stay in the suit premises. It was the appellant s plea that they had requested for temporary occupation of the premises till alternative site was secured. He had permitted the Sangh to occupy the premises for office purposes. But later the respondents had not vacated the premises. Then defence taken by the Sangh through its Manager, the President and the Member in joint written statement was that the property belonged to the Raja of Panna who at a meeting had declared that the Sangh was entitled to occupy the premises and remain in possession for all times. Pursuant to that, they had come into the premises, and, therefore, they are entitled to remain in possession. Appropriate issues were framed and after adduction of evidence and consideration thereof, the trial Court upheld the plea of the respondents and dismissed the suit. In F.A. No. 70/81, the High Court by an order and judgment dated October 31, 1986 allowed the appeal and decreed the suit for ejectment. All the three filed SLP (C) No. 2751/87 in this Court and by order dated July 15, 1987 a Bench of three Judges of this Court refused leave and dismissed the petition. The appeal was argued by no less than Shri U.R. Lalit, one of the eminent senior counsel of this Bar. After the execution was laid, Gorelal Soni and the respondents had filed objections contending that Sangh was not a registered body but composed of several members. The appellant had not followed Order 1 Rule 8, procedure. Therefore, the decree was a nullity and Section 11 is not a bar. The executing Court had upheld the objection and dismissed the petition. On revision, the High Court confirmed the same.

4. Shri Shiv Dayal Srivastava, learned senior counsel appearing for the appellant has contended that in view of the stand taken by the Manager, the President of the Sangh and the Member and having diligently prosecuted the proceedings, by no stretch of imagination it could be construed to be a collusive suit. Unless there is a finding that the decree is obtained by collusion or negligence, every member of the Sangh is bound by the decree. Though formal permission of the Court under Order 1 Rule 8 was not sought for in the suit, in substance it is a representative suit and the defendants so understood it. Every member of the Sangh is bound by the decree. The view of the High Court is not correct in law.

5. Shri Adarsh Kumar Goel, the learned counsel appearing for the respondents contended that permission for a representative suit under Order 1 Rule 8 is mandatory in law. No persmission having been obtained by the appellant, the decree passed by the High Court on appeal is a nullity. That plea can be raised at any stage including in the execution. The High Court, therefore, was right in its conclusion that the decree is