Case: Dularey Lodh Vs. IIIrd Additional District Judge, Kanpur and Others

The respondent- landlord filed a suit for ejectment in the year 1971 and obtained a decree for ejectment against the appellant- tenant. By virtue of the provisions of 1972 Act, the case was transferred to the court of the Judge, Small Causes who tried the case and passed a decree in favour of the respondent on 4.4.1973. It may be noted that the tenant did not object to the jurisdiction nor did he prefer and appeal or revision against the said judgment dated 4.4.73 and the same became final.Thereafter, the decree-holders filed an execution petition being Execution Case No. 4 of 1973. The appellant, however, raised a jurisdictional objection on the basis of a judgment of the Allahabad High Court reported in 1975 A.L.R. 360 that the transfer of a suit before conferment. Of jurisdiction to the Judge, Small Causes Court was not competent and, therefore, the decree was not executable. Counsel for the respondents under some misconception conceded that the suit would have to be tried all over again and the Execution Case was, therefore, disposed of by an order dated 31.1.1976 passed by the Executing Court. The Court held that the decree was without jurisdiction. The respondents, however, took the stand that a concession on a point of law was not binding on him nor was his Advocate authorised to make such a concession. However, the decree remained inexecutable but by virtue of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Amendment) Act, 197 6 (hereinafter referred to as the 1976 Amendment Act), section 9 of the 1972 Act was made applicable with retrospective effect to remove the injustice and remedy the mischief which had been caused to the decree- holders. The relevant portion of the said amendment may be extractedTransitory ProvisionXX XX XX(6) The provision of section 9 of the Uttar Pradesh Civil Laws Amendment Act, 1972 shall apply and shall be deemed always to have applied in relation to suits of the nature referred to therein which before the commencement of that Act had been transferred to a competent court and were pending immediately before the date of commencement of that Act in such transferee court as they apply in relation to suits which were pending in the court in which they were instituted:Provided that any such suit decided by the transferee court between the commencement of the said Act and the commencement of this Act on the assumption that the said Section 9 did not apply to such suits shall be deemed to have been validly decided as if the said section did not apply to sucha result of the amendment extracted above, the judgment of the Allahabad High Court reported in 1975 A.L.R. 360 stood overruled and effaced.In view of this amendment, the respondents filed an application before the Executing Court for revival of the suit and the decree which was accepted by the court and a civil revision filed against the said order was dismissed by the High Court; hence this appeal by special leave in this Court.

Reasoning: In two recent decisions, this Court has applied the doctrine of eclipse in similar situations. In S. Anbalagan v. B. Devarajan the following observations werethe practice of the caste makes it necessary no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion." (Emphasis ours) Similarly, in the case of Kailash Sonkar v. Smt. Maya Devi, to which one of us (Fazal Ali, J.) was a party, this Court made the following observation:"In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her life-time the person is reconverted to the original religion the eclipse disappears and the caste automaticallyapplying the rule of law laid down by this Court, there would be no difficulty in upholding the judgments of the courts below in this particular appeal. By virtue of the 1972 Act, the decree could not have been set aside or invalidated and the only consequence which would ensue is that the decree would be lying dormant and could not be executed. Once the bar placed by the 1972 Act is removed, by virtue of the doctrine of eclipse the decree will revive and become at once operative and executable. The courts below have rightly decided that after the 1976 Amendment Act the decree became legallyother arguments were also advanced on behalf of the appellant but in view of the express language of the 1976. Amendment Act and the doctrine of eclipse, they seem to be futile.