Point of law : Appeal suit - There is nothing mandatory that the appellate court should invariably direct publication of notice whenever a decree in a representative suit is challenged. Merely for the reason that such publication is not made, the appeal will not become incompetent.

ORDER :

Haripal, J.

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. The said suit was instituted alleging that the defendants are trying to construct a crematorium in the plaint schedule property. The learned Munsiff dismissed the suit along with O.S.No.332/1999, a suit for injunction, where also some of the defendants were impleaded in their representative capacity, by a common judgment dated 30.06.2013, against which A.S.Nos.98/2003 and 99/2003 were preferred before the Sub Court, Payyannur. Learned Sub Judge, by judgment dated 17.01.2012, dismissed A.S.No.98/2003, which was preferred against the decree in O.S.No.332/1999, and allowed A.S.No.99/2003. By the said common judgment, the dismissal of O.S.No.332/1999 was confirmed and the decree dismissing O.S.No.357/1999 was reversed and a decree was granted upholding the right of the plaintiff over plaint 'B' schedule property. The court also found that the re-survey number given to plaint 'B' schedule is incorrect and the re-survey authorities viz., respondents 5 to 7, were directed to rectify the same and re-register the property in the name of the plaintiff. The defendants including supplemental defendants were directed, under a mandatory injunction, to remove the construction in the plaint 'B' schedule property; they were also restrained, under a permanent prohibitory injunction, from trespassing upon plaint 'B' schedule property or doing anything against the interests of the plaintiff. Aggrieved by the same, defendants 1 to 4 have preferred these second appeals.

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.

4. Accordingly, when the matter came before the Division Bench, by order dated 20.07.2017, the Division Bench endorsed the view of the learned Single Judge that the decision in Radha requires reconsideration at the earliest. The Division Bench also appointed Adv.Sri.S.Vinod Bhat as amicus curiae to assist the Court in the case. Thus the matter came before us to pronounce on the correctness of the decision in Radha K.S. v. Sadasivan and another [2017 (1) KHC 118].

5. According to the learned Judge, the observation of the Division Bench goes against the fundamental rule that an appeal is continuation of a suit. Moreover, if that view is accepted, that would result in un