Holding

The decree is revived and becomes executable under the doctrine of eclipse and the retrospective effect of the 1976 Amendment Act.

Summary

The landlord obtained a decree for ejectment against the tenant in 1973, but the decree was held inexecutable under Section 9 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The tenant raised a jurisdictional objection, and the execution petition was dismissed. The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 retrospectively made Section 9 applicable to suits pending before its commencement, thereby removing the bar to execution. The respondents sought revival of the decree, and the executing court allowed it. The Supreme Court examined whether the 1976 amendment, by operation of the doctrine of eclipse, could revive a decree that had become dormant, and held that it could. Consequently, the decree was deemed revived, operative and executable, and the appeal was dismissed.

Issues considered

Whether a decree rendered inexecutable by the 1972 Act can be revived and made executable by the retrospective operation of the 1976 Amendment Act.
Whether the doctrine of eclipse applies to revive a decree that was dormant due to statutory incompatibility.
Whether the earlier Allahabad High Court decision (K.K. Saksena v. S.N. Misra) remains binding after the amendment.

Legislation cited

Subjects

decree revivaldoctrine of eclipseretrospective legislationU.P. Urban Buildings Actexecution of decreelandlord-tenantstatutory amendmentjurisdictioneviction

Judgment

..
74~
'
DULAREY LODH A
v.
THE. IIIRD ADDL. DISTRICT JUDGE, KANPUR & ORS.
B
May 3, 1984

[S. MURTAZA fAZAL,ALI AND A VARADARAJAN, JJ,]
U.P. Urban Buildings (Regulation of Letting1 Rent a1.d ·Eviction\ Act
1972, Section 9 & U.P. Urban Build:ngs (Regulation of Letting. Rent and c
Evict.ion) (Amendinent) Act )9'76- Decree of ev;.: ti on passed' again!d tenant under
1972 Act-Executing court holding decree fne-xecutable-'1976 Amendn1ent Act
making ;ection 9· of 19]2 Act applici!blie with retrospective ef!ett--Decree of
.. eviction whethef :revived and becorning operative and executable-Doctrine of·
eclipse-Appllcability ·of:

Interpretation of Statutes-Doctrine, of e'cliPse-Appllcability. of-When D
arises .
•
The respondent 1and1ord filed a suit for ejectment in the year 1971
and obtained a decree for ejectment agatnst the appellant-tenant. By virtue
of the provisions Qf the U.P. Urban Buiidings (Regulation of Letting, Rent
and Eviction} Act, 1972; the cuse waS transferred to the court of -the Judge,
E
Small Causes, who tried the case and passed a decree in ·ravour of the
respondent. No appeal or revision was fil_cd· agaii1st tbe said- judgment.
Thereafter, the.decree-holders filed an execiition petition. The apPeJJant,
raised a jurisdictional objection, on the basis of tlie judgmeDt of th"e AJJaha~
bad High Court,.(K.K. Saksena v. S.N. Misra 1975·ALR 360) to the effect
that the_ transfer of :the suit. before conferment Of the jurisdiction to the
F
Judge, Small Causes Co~rt was.not ·coinpeteat and therefore, the decree \vas
not exe·cutable. The respondent's counsel contended that the suit would have
to be tried all over ag<i.in and the Court held that t-he decree was without
jurisdiction. The decree remained inexecutable, but bY vjrtue of the U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) ·
Act, 1976 _s. 9 of the 1.972 Act was made applicable with reirosp~ctive G
effect to remove 'he.injustice and remedy the mischief which had been
caused to the decree-holders. As a re~u't -of the amendment, the aforfsaid
judgment of the Allahabad High Court stood .over ruled and effaced .

.Jn view of the aforesaid ·amendment, the respondents filed an applica- H
tion before the EXecuting Court for revival of the suit· and the decree, which
was ·accept~d bYihe Court, and a Civil Revision ij.Jed against t_be siiid Order
was dismissed by the Hish Court, · ,
,744 SUPREME COURT. REPORTS [1984] 3 s.c.R.

A Jn the appcii.l lo this Coi.irt, it was contended on behalf of the
appellant, that in ~icw of the Al!ahabad High Court decision and the r97 2
Act, the decree st9od set aside and could not be revived or made executable
.even by the 1976 A~endment Act. · ·
I

Dismissing the appeal,
i '
B
HELD : I. iThe courts below Juve rightly decided that after the 1976
Amen.drnetit Act tfe decree became legally executable. [747A] . ,\
2. By virh·~ of the l 97 2 Act the decree could not have been set
aside or invaHdafed and the only con~equcnce wh.ich would ensue is that
the decree wo'11d Pe lying dormant and could not be ext!:ut~d. OnCe the bar
C placed by the 19V Aet is removed, by virtue of the doctrine of eclipse th<>
decree will revive. and become at once operative and executable,
1

[7SOH; 75 IA]
I

3. 'Even i1 the 1972 Act were to apply, the utmost" consequence
would be that th~ decree would remain inexecutable but could not bo struck
off from the reco.Tds of the case. This is a clear case Where the doctrine of
eclipse would ap1)ly, and {n view of the 1976 Amendment Act, the decree
D will revive a·nd ~ecome ·-executable. This principl~ has been applied by this
'.
Court. in severaf cases and ·11.ows from the well-known doctrine of eclipse·.
which bas been rnunciated not only ip. India but in other countries also.
. · · . (7470-H)
I
. Bhikajl t\{arain Dhakrai· & Ors. v. Stats of Madhya Pradesh & Anr;
[1955] 2 SCR S89, Deep Chandv' SrQte ofU.P. &Ors; (1959] 2 Supp. SCR
E ·s, Mahendra Lal.laini v. The State of Urtar Pradesh & Ors; [1963] I Supp.
SCR 912, S .A.balag;P v.·n. Dcvarajan; [198"4] 2 SCC 91, Kai/ash Sankar v.
Smt. Maya Dev(; (1984] 2 SCC 91, referred to ..

C1v1L ~~PELLATE Ju1so1cnoN : CiviJ Appeal No. 1574 of'l980.
Appeal lby Special leave from the, Judgment and Orcler dated'
F tlie27.719791ofthe Allahabad High Conrt i.n C.M.W .. No. Nil of
19.79.
Anil DJv Singh, S.L. Aneja and KL. Taneja for the Appellant.
M.C. 'ftanchanda, Mrs. S,hobha Dikshit and Pramod Swarup
G for the Resiiondent. · ·. .
The· J1ldgment of the Court was deliver< d by •
I
FAZAJr ALI, .J. This appeal by special leave against a judgment
of the Allahabad High Court. unfolds a te!Ha·\e plight of an unfor-
tunate litig~nt who, after obtaining a deeree for ejectment, was driven
1

H .from pi1lar to post to get the said decree executed .. His·attempts to·
get the sai4 decree executed were stalled sometimes by objections
fl\ed by thi; tenant-appellant and, sometimes by amendments. made
I

•
DULAREY LODH v. DISTT. JU8GE (Fazal Ali, J.) 745

in the law with the resµlt that even after 13 years .of litigation the A
landlord respondent was not able to get possession of the premises.
This was because of a statutory amendment which made the d~cree
obtained by him inexec\itable and was, therefore, lying dormant and
ineffective. ·

.The .legislature havin·g realised the hardship of such landlords B
came to their rescue by an amendment in 1976• to the UP. Urban
Buildings (Regulation of Letting, Rent and Evi~tion) Act. 1972 (for
short, to be referred to as the •19;2 Act') which was expressly given
retrospective operation so as to revive the decrees which had become
inexecutable.
c
•When the appeal was heard .and the arguments were ccincluc)ed
the respondents had made a good gesture in agreeing to. allow the
J tenant two years' time to vacate the premises on giving the usual
undertaking and accordingly we adjourned the case to en.able the
parties to coine ·to a settlement. However, we were informed by D
counsel for the parties that no settlem~t could be reached; hence
we have now to decide the case on merits.

And now to the facts of the case. The respondent.landlord
filed a suit for ejectment in the year 1971 and obtained a de.cree for
ejectment against the appellant-tenant. By virtue of the provisions of E
1972 Act; the ca§e 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 no• did he prefer and appeal or revision
against the said judgment dated 4.4. 73 and the same became' final.
F
Thereafter, the decree"holders filed an execution petition beiqg
Execution Case No. 4 of 1973. The appellant, however, raised a
jurisdictional obje?tion qn the basis of a judgment of the Allahabad
High Court reported in 1975 (l.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 execuiable. G
Counsel for the respondents unger some misconception conceded
that the suit would have to be fried all over 'again and the Execution
Case was, therefore, disposed of by an Order dated 3!.l.1976 passed
by the Executing Court. The Court held that the decree was without
H
'jurisdiction. The respondents, however, took the stand that a conces-
sion on· a point of law was not. binding on him .nor was his
Advocate authorised to make such a concession. However, the decre~
746 '
SUPREM!l COURT RflPORTS [i984) 3 S.C R.
A remained inexecutal1Ie but by virtue of the U.p. Urban Buildings
(Regulat10n of Lettmg, Rent and Eviction) (Amendment\ Act 1976
(hereinafter referred to as th; '197(, Ame:idment Act'), ;ectio~ 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
B
dec.ree-holders. The relevant portion of the said amendment may be
extracted thus : •
'
..
(
~·
u26. · Transftory Provision

xx xx xx
c
(6) The prov1s10n of section 9 of the Uttar Pradesh
Civil Laws Amcndmeni Act, 1972 shall apply ahd shall be
deemed always to hwe applied in relation to suits of the
nature r~ferred to therein which before ·the commencement
of th~t Act had been transferred to a competent court and
0 were pending immediately before the date of commencement
of that Act_in such tnn.cree 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
E, 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 mid section did not
apply to such suits."
F
As a result of the nmendment extracted above, the judgment·
of the Allahabad High Court reported in 1975 A.L.R. 360 stood
overruled and effaced. ·

In view of this amq1dment, the respondents file.d an applica-
G tion 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 Jigh Court; hence this appeal by
special leave in this Cour.t.

In order to understand the implication of the 1976 Amend-
H ment Act, it may be necessary to peruse s. 26(5) of the said Amend-
ment, which is extracted thus
DULAREYLODH v. 01s1r JUDGE (Fnzal Ali, J.)' 747

· "(5) Notwithstanding any judgment; d'ccree or order of A
any court or authority, the provisions of Rule 16 of the
Uttar Pradesh Urban Buildings (Regulation of Letting,
·Rent and Eviction) Rules, 1972 shall be deemed to have
been made under the pcovisions of the principal Act as
amend,,d by. this Act as if this Act were in force on all B
material dates."

A close analysis of the above reveals that the inteniion of the
legislature was to remove the injustice done to the landlords whose
decrees b.ecame · inexecutable. The logical consequence which flows
from an interpretation of ·clauses (5) and (6) of s. 26 of the 1976 C
. Amendment Act would be that all decrees which hitherto had been
lying dormant would revive an.cl the landlord· could get the decree
executed.

The Executing Court as also \he High Court upheld the conten- D
tion of the respondents and directed execution of the decree.
The sheet-anchor of the arguments ·of the counsel for the
appellant was that in view of the Allahabad High. Court decision .
(supra) and tho 1972 Act, the decree stood set a~ide and could not
be revived or made executable ~ven by the 1976 Amendment Act. E
It is; however, impossible for us to acc;pt this contention, because
the dominant i;iurpose of the 1976 Amendment. Act was to remedy
the injustice done to the landfords (Jy the 1972 Act.

Another flaw in· the argument of the counsel for the appellant
is that it presumes th~t the decree became completely without F
jurisdiction and stood set aside. That, however, could not be the
position in Jaw. Even if the 1972 Act were to apply, the utmost
cons~quence would be that the decree would remain inexecutable but
could not be .struck off from the records of the case. This is a clear G
case where the doctrine of eclipse. would apply and in view of the
1976. Amendment Act, the decree will r~vive and become executable.
Tliis principle has been applied by this Court in sever~! cases and
flows from the well· known ·doctrine of eclipse ·which has been
enunciated not only in India but in other countries also. In Suther-
land Statutory Construction by Horack (Vol. I, 3rd Edn.), the follow- H
ing pa~sages may be noted :

"In a majority of the jurisdictions the courts r~.cosnise
•
•

748 SUPRD,!E COURT REPORTS (1984) 3 S.C.R. '

the mistake of the legislature and try to determine and give
A ·effect to its intent. If the legislature .has expressed its
purpose intelligibly in the amendatory act and provided
fully upon the subject considered, a majority of courts hold
that it is a reasonable conclusion that the legislature did
not intend to make the enforcement of the statute contin-
gent on the continued existence of the repealed -statute ...
B ''
(p. 329) t
1'he unconstitutional act physically exists in the ofticial
statutes of the state and is there available for reference,
and as it is only unenforceable, the purported amendment
is given effect. If the law as amended is constitutional, it
c will be enforced." (p. 335)

It is true that the American Constitution as also the· American
coum have been most reluctant to apply the doctrine of eclipse but
this Court has pointed out in more than one case that the American
view cannot be applied to our Constitution. The matter first came
D
·up. for consideration before this Court in Bhikaji. Narain Dhakras &.
Ors. v. Stqte of Madhya Pradesh & Anr.C') where in a similar situa-
tion the doctrine of eclipse was fully applied and the court observed
thus:
•
"The true position is that the impugned Tu.w became,
E
as it were, eclipsed, for the time being, by the (undamental
right. The effect of the Constitution (First Amendment)
Act, 1951 )Vas to remove the shadow and to make the
impugned Act free froI\l a!l blemish or infirmity ...... Such ·
laws were not dead for all purposes .. They existed for the
F purposes of pre-Constitution rights and liabilities and they
remained operative, even after the Constitution, as against
non-citizens ...... Jn our judgment, after the amendment, of
clause (6) of Article 19 on the I8ih June 1951, the impugned
Act ceased to be unconstitutional and. became revivified and
enforceable against citizens as well as against non-citizens ...
G But after the amendment of clause (6) the impugned Act
immediatei'y became fully operative even as against the
citizens." ·

In Deep Chand"' State of U.P. & Ors.(') simi!ai:, observations

H (1) [19SS] 2 SCR 589.
(2) {1959J 2 Supp. SCR~8.
PULAREY LODH v. PISTT iUDGE (Fazal Ali, J.) . 749

were made by this Court· which may be extracted! hus : A
"As, however, our learned Brother has thought fit to
embark upon a discussion of these questions, we desire to
guard ourselves against being understood as accepting or
acquiescing in the conclusion that the doctrine of eclipse
cannot apply to any post-Constitution Jaw. A post-Consti- B
tution law may infrlnge either a fundamental right .con-
ferred on citizens onJy·or a fundamental right conferred on
any person, citizen or non-citizen. In the first case the law
will not stand in tlie way of the exercise by the citizens of
that fundamental right and, . therefore, will ·not have any
operation on the rights of the citizens, but it will be quite
· effective as regards non-citiiens. Jn such a case, the funda-
mental right will, qua the citizens,- throw a shadow on the
•
law which will ~evertheless be on the Statute Book as a valid
law binding on non· citizens and· if the shadow is removed. by
a constitutional amendment, the law will immediately be
· applicable even to the citizens w'thout being re-enacted......
In other words, \he doctrine of eclipse ·as explained by this
Court. in Bhikaji Narain Dhakras v.. The State of Madhya
•
Pradesh [1955 (2) SCR 589] also applies to a post-Consti-
tution law o.f this kind.... ;. · ··

A pre-Constitution law, stating in the words of Pas, J., E
as he theri was, exists notwithstanding that it doe.s not exist
v;ith respect to the future exercise of the fundamental rights.
'Jhat principle has been extended in this decision, by
invoking the doctrine of eclipse. A« ihe law ·existed on the ·
statute book to ·support pre-Constitution acts, the Court held
that the said law was eclipsed.for the time being by one or F
other of the fundiimental rights and when the shadow was
_removed by the amendment of the Constitfltion, the impugn-
ed Act became free from ~ll blemish or infitmity." ·•
(Emphasis ours)

In Mahendra Lal Jaini v. The State.of Uttai' Pradesh &.Ors.( 1l G
this Court held as follows : .
"The pre·ConstitutionJaws which were perfectly valid
when th~y were passed and the existence of.which is recog-
nised. in the opening words. of Art. 13(1) revive by the
removal of the inconsistency in question. This in effect is H

(I) [1963).,J Supp. SCR 912 •
•
•
750 SUPRBMB COURT REPORTS (1984] 3 S.C.R.
A
the ,doctrine nf eclipse, which, if we may say so with respect,
was applied in Bhikdji Narain's case.;.... . .. • .

So far as pre-Constitution laws' are concerned, the
amendment of the Constitution which removes the inconsis-
te:ticy will result in the revival of such laws by virtue of . the
B
doctrinepf eclipse, as laid down in Bhikaji Narain' s case,
for .the pre-existing laws Were not still-born ~nd would I

still exist though eclipsed on account of the . inconsistency j._
to govern pre-existing matters." · (Emphasis supplied)
'
,In two recent decisions, this Court has applied the doctri~e of
., eclipse .in similar situations. In S. Anhalagan v. B. Devarajan(1 ) the
following observations were made :

D
"Unless.the practice of the caste makes it necessary no
expiatory rites need be performed and: ordinarily, he
regains his ca~te unless the community does not accept
\.: .
him ...... The practiae of castr 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 dis-.
E appears only to reappear on reconversion." (Emphasis ours)

Similarly, in the case of Kai/ash 'Sankar v. Smt. Maya Devi,(1 )
to which one of us (Fazal Ali, J.)was a party, this Court made the
following observation:
F "In our opinion, when a person is converted to Chris:
tia'nity 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 o,riginal religion the eclipse .
. disappears and the caste automatically revives." ' '.
G Thus, applyipg the rule of law . laid down by this Court, \hero
would . be no difficulty in upholding the judgments of the courts
below in this particular appeal. By virtue ~f the 1972 Act, the decree
could norhave been set aside or invalidated and the only consequence
whfoh would ensue is that the decree would belying dormant and
could not be executed. Once the bar placed·. by th~ 1972 Act is ·
H
(t l [1984] 2 sec 91.
\2l] {1984) 2~SCC 91.
•
biJiAR.EY LODH v. 01.sn JUDGE (Fazal Ail, J.) . 151

removed, by virtue of the doctrine of eclipse the decree will revive A
'' and become· at one' operative ·an<l executable. The courts below
have rightly decided th1t after the 1976 Amendment Act the decree
became legally executable. · .

Some other arguments were also advanced on behalf of the
appellant but in view of the expresE language of the 1976 Amend- B
ment Act and the doctrine of eclipse, they seem tobe futile.

For the reasons given aboue, we uphold the decree for eject- •
men! passed by the courts below ag~inst.the appf!llant and dismiss
the appeal with costs. As the· litigation has taken more than a
decade; it is hot possible for us to giv~ any time to the tenant for c
vaqating the premises and the decrre may now be executed forthwitla
and the landlord put into possession.

NV ••K. Appeal dismissed.
. ,

•

. )

j