P. Somarajan, J.:— 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, but no steps were taken to implead himself into the suit or to prefer an appeal as an aggrieved person against the decree and judgment but remained as a silent spectator for a long period. The present claim petitioners also stand on the same pedestal and they have not taken any steps to implead themselves into the party array of the suit or to prefer an appeal in spite of notice of pending litigation against the estate of deceased Kanaran.

7. The exhaustive definition given to the expression “a person is said to have notice” under Section 3 of the Transfer of Property Act is squarely applicable to a pending litigation when it came to the notice of any interested person or when there is a wilful abstention from an enquiry or search which he ought to have made or gross negligence. A person is said to have notice of a fact when he actually knows that fact. The principle of constructive notice was also brought under the exhaustive definition to the expression “when a person is said to have notice” and any wilful abstention from an enquiry or search which he ought to have made, or gross negligence would amount to constructive notice. Failure to make enquiry or search which ought to have been done would constitute a valid notice and when it is proved that the pending litigation against some of the legal heirs came to their notice or any wilful abstention from making an enquiry or search which ought to have been done would constitute constructive notice of pending litigation or the decree, if any, passed.

8. The doctrine of substantial representation promotes substantial justice based on principle of equity, laches and acquiescence and avoids multiplicity of proceedings. The principle behind it can be made applicable when there is a substantial representation of common estate, either in a suit or proceedings, when identical or common interests are involved. When the estate or the common interest was substantially represented, the result would bind on the estate and all those who are having same interest over the estate irrespective of whether they were made as parties to the proceedings or not. The only exception is fraud or collusion in obtaining the decree. A mere non-contest of the suit or the proceedings by the parties does not itself satisfy either fraud or collusion though the same are relevant factors to be looked into in answering fraud or collusion in obtaining a decree. There should be evidence that the decree was obtained by playing fraud or collusion and the burden would be on the person who claims it, otherwise the liability under doctrine of substantial representation would operate against all those who hold the same interest or identical interest with that of parties to the suit or the proceedings over the estate.

9. In N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb (AIR 1966 SC 792) the Apex Court by relying on the proposition laid down in Daya Ram v. Shyam Sundari (AIR 1965 SC 1049) and two decisions of the Madras High Court in Shanmugham Chettiar v. K.A. Govindasami Chettiar (AIR 1961 Madras 428) and Chaturbhujadoss Kushaldoss & Sons v. Rajamanicka Mudali (AIR 1930 Madras 930) settled the legal position as under:

“Where on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle is a part of the law of procedure which regulates all matters going to the remedy and applies to all parties irrespective of their personal law. (para 14)

There is no difference in principle in the case where a debtor who is sued for recovery of debt, dies after the institution of the suit and his legal representatives are brought on record and a case where the creditor, after making a diligent and a bona fide enquiry, impleads certain heirs as parties to his suit in the genuine belief that they are the only persons interested in the estate. In both the cases the whole estate of the deceased will be duly represented by those persons who are brought on the record or impleaded, and the decree will be binding upon the entire estate. (para 17)

This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir or where there are other circumstances which indicate that there has not been a fair or real trial, or that the absent heir had a special defence which was not and could not be tried in the earlier proceeding. (para 17)”

10. The only exception is the fraud or collusion or such other sufficient ground in obtaining the decree. No where in the application under Order XXI Rule 97 CPC it is pleaded what is the nature of collusion or fraud involved in the suit. An exparte decree was passed in the suit but defendant Nos. 1 to 3 had applied for setting aside the exparte decree. Though the said application was allowed on terms it was not complied with by the defendants. Ultimately, an exparte decree came into force. The mere non-contest of the suit cannot be substituted in the place of fraud or collusion unless there is cogent evidence to show otherwise, for which absolutely no material was placed by the claim petitioners.

11. What is material for the operation of the principle of substantial representation is that the estate should be represented by somebody holding the same or identical interest over the common estate. It is not at all necessary that the suit should have been instituted during the life time of the original estate holder/registered owner. What matters is the representation of the estate so long as it remains as such, being the estate left out to the common stock of his legal heirs. Then the decree on the common estate would bind upon all the legal heirs of the deceased owner/estate holder when there is substantial representation of the estate by some of the legal heirs. So, the claim petitioners are bound by the decree and they cannot maintain an application under Order XXI Rule 97 CPC.

12. The Execution Second Appeal deserves only a dismissal, I do so, but without costs.