An application in E.A.No.225 of 2005 under Order XXI Rule 97 of the Code of Civil Procedure submitted by four siblings of defendant Nos.1 to 3 resisting the execution of decree passed in O.S.No.10 of 2003 by the Munsiff's Court, Perambra was dismissed by the Execution Court by its order dated 24.11.2011. It was taken up in appeal in A.S.No.36 of 2011 wherein the order of the execution court was confirmed. Aggrieved by the said order/decree, the claim petitioners came up with this Execution Second Appeal.

2. The suit is one for fixation of boundary and for permanent prohibitory injunction. It was decreed by fixing the boundary separating the property of plaintiffs from that of defendant Nos.1 to 3 on the northern and western sides. The northern and western property originally belonged to one deceased Kanaran, the father of defendant Nos.1 to 3 and the claim petitioners. They obtained right and title over the property by devolution on the death of their father. The property was not partitioned by any registered deed of partition. After the passing of the decree fixing the northern and western boundaries it was put in execution. The execution of the decree was objected by the claim petitioners mainly on the reason that they are not parties to the decree and hence not binding on them.

3. The application was resisted by the decree holders on the ground that the estate left out by Kanaran, the father of defendant Nos.1 to 3 and the claim petitioners, represented in the suit by some of his legal heirs - defendant Nos.1 to 3 - and hence the decree passed is binding on the estate of deceased Kanaran and his legal heirs.

4. Inter alia it was contended by the claim petitioners that the suit has resulted in an exparte decree as it was not contested by defendant Nos.1 to 3. Though the application submitted by defendant Nos.1 to 3 for setting aside the exparte decree was allowed on terms, it was not complied with and ultimately an exparte decree came into force. It is also submitted that since it is an exparte decree, it cannot be said that defendant Nos.1 to 3 were contesting the suit representing the estate of the deceased Kanaran.

5. From the facts involved in the suit, the following questions require consideration:

1. Whether a decree against some of the persons having common interest/identical interest over an estate/property left out in common, would bind upon the other persons who are not parties to the suit?

2. The equitable rule of laches and acquiescence would operate against them when there is failure to act in spite of notice of pending litigation?

3. Whether the principle behind the doctrine of substantial representation can be made applicable when there is substantial representation of estate/ property left in common, against other persons who are having the same or identical interest over the property?

4. What would be the effect of an exparte decree (uncontested decree) and whether the non-contest of the suit by itself would amount to collusion or fraud, frustrating the application of principle behind the doctrine of substantial representation?

5. Whether the doctrine of substantial representation can be applied in a suit filed after the death of original estate holder/registered owner and what are the requirements for its application?

6. “Vigilantibus non dormientibus aequitas subvenit” - Equity aids the vigilant not the indolent - A person who has been wronged must act relatively swiftly to preserve his rights. Otherwise, he is guilty of laches. An untoward delay in litigation with the presumed intent of denying claims or to keep away as a silent spectator, would bring the person within the liability of equitable rule of laches and acquiescence. During trial stage of the suit, at the time of visit of the commissioner, one of the legal heirs who was not made as a party to the suit applied before the Commissioner raising co-ownership right over the property claiming that it is the property left out by their deceased father,