Mandatory requirement of obtaining permission under Order 1 Rule 8 of CPC for filing a suit against unincorporated bodies.

The petitioners are the defendants in O.S.NO.55 of 1997, on the file of the Subordinate Judge, Kuzhithurai. It is the suit filed by the respondents/Plaintiffs for following reliefs:

a. To declare that the above said gift deed dated 26.5.1997 is incompetent, invalid and void ab-initio.

b. The first defendant who is in illegal occupation of the parsonage may be evicted there from

(c) The defendants may be restrained by an injunction from taking or assuming possession of the suit property and from conducting their denominational prayers or their other activities therein

(d) in case during the pendency of the suit the defenants some how or other taken forcible and illegal possession of the suit property. Plaintiffs may be allowed to recover possession of the property from the defendants with mesne profits.

2. The trial Court refused to grant the reliefs (b) and (c) and granted the reliefs (a) and (d), namely recovery of possession. An appeal preferred by these petitioners in A.S.No.121 of 2004 was dismissed and that they have preferred a Second Appeal before this Court, in which stay was not granted and notice was only ordered. In the meanwhile, the respondents initiated execution proceedings in E.P.No. 16 of 2011, on the file of the Subordinate Judge, Kuzhithurai for recovery of the suit properties, namely, "a plot of 30.750 cents and the Church, Parsonage and other buildings and all other things found thereon in Murampuvilai Puravidom measuring 1.34 acres from the petitioners."

3. Pending the said E.P, an order of delivery has been passed and the same is yet to be executed. These petitioners filed an Execution Application under Section 47 CPC praying the Executing Court to consider the questions arising between the parties to the suit and after satisfaction that the decree is unexecutable, the Execution Petition may be dismissed. In the affidavit filed along with the Execution Application, it is inter alia contended that the third defendant is Church of South India Trust Association, represented by its Bishop of Kanyakumari Diocese and both the church and the Diocese are unincorporated bodies, that the defendants are on the whole are christian community and so the Court's permission to institute the suit should have been obtained under order 1 Rule 8 of C.P.C and that since the said condition was not complied with, the suit is not maintainable and thereby the decree passed in the case is a nullity and when the question came to be considered by the Court in the E.P., the Petitioners 3 to 5 who are few individual worshippers in the church contended that they cannot be impleaded as such and the plaintiffs ought to have instituted a suit in the representative capacity. The learned Subordinate Judge, Kuzhithuri rejected the execution application without any reasons. The order on the application only show as "orders pronounced. In the result, the application is rejected. No costs". When the learned counsel for the petitioners was questioned by this Court as to whether there was any speaking order, he replied in the negative.

4. Even in the Written Statement, it is pleaded that the plaintiffs are incompetent to file the suit representing all the members of the. In the counter filed by the petitioners in the execution petition, they have averred that the suit is not a representative suit filed by the defendants.

5. The learned counsel for the petitioners Mr. K. Sreekumaran Nair contended that the suit filed against unincorporated bodies is nothing but a suit against the christian community and hence it should have been filed in the representative body getting the permission of the Court under Order 1 Rule 8 of CPC which is mandatory. In support of his contention, the learned counsel for the petitioners relies upon a Division Bench Judgment of this Court in the case of The Executive Committee of the Synod Church of South India .vs. Rt. Rev. Dr. V. Devasahayam(DB) reported in 2009(5) CTC 398, wherein the learned Judges have obs