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Town Area Vs. Chhedilal Marwari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2092 of 1958
Judge
Reported inAIR1962All124
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47
AppellantTown Area
RespondentChhedilal Marwari
Appellant AdvocateB.S. Darbari, Adv.
Respondent AdvocateK.N. Sinha and ;Chaturbhuj Sahai, Advs.
DispositionAppeal dismissed
Excerpt:
civil - res-judicata - sections 11 and 47 of code of civil procedure,1908 - change in law after passing of decree - appeal by judgment debtor - appeal dismissed - execution - held, res-judicata applies. - s.s. dhavan, j.1. this is a second appeal by the town area committee, captainganj, district deoria against an appellate order of the learned civil judge deoria dismissing the committee's objection under section 47 c. p. c. the execution court had allowed the objection and held that the execution had abated in view of a change in the law but the learned judge took a different view in appeal.2. the facts are these : the plaintiff respondent chhedilal filed a suit in 1949 for the recovery of rs. 850 being the amount which had been recovered from him by the town area committee captainganj as tax. the suit was decreed by the trial court and the decree was upheld both by the appellate court and this court in second appeal. the decree holder then applied for execution of his decree on feb. 2,.....
Judgment:

S.S. Dhavan, J.

1. This is a second appeal by the Town Area Committee, Captainganj, district Deoria against an appellate order of the learned Civil Judge Deoria dismissing the Committee's objection under Section 47 C. P. C. The execution court had allowed the objection and held that the execution had abated in view of a change in the law but the learned Judge took a different view in appeal.

2. The facts are these : The plaintiff respondent Chhedilal filed a suit in 1949 for the recovery of Rs. 850 being the amount which had been recovered from him by the Town Area Committee Captainganj as tax. The suit was decreed by the trial court and the decree was upheld both by the appellate court and this Court in second appeal. The decree holder then applied for execution of his decree on Feb. 2, 1956. The Town Area Committee filed an objection on the ground that the law relating to the recovery of the impugned tax had been amended with retrospective effect and the decree holder was, therefore, not entitled to claim a refund on the ground of its illegality. The trial court held that the rights of the parties had been materially altered by the change in law as a result of which the decree holder could not claim a refund. In appeal the learned Civil Judge held that the amendment in the law did not affect the controversy in the present case and the Town Area Committee could not take advantage of Section 13 of the U. P. Town Area Amendment Act (No. 5 of 1953) and that the decree holder was entitled to recover the amount under the decree. Aggrieved by this decision the Committee have come to this Court in second appeal.

3. At the hearing of this appeal, Mr. Chaturbhuj Sahai learned counsel for the plaintiff respondent stated that the second appeal filed by the Town Area Committee against the decree in favour of Chhedilal was dismissed by this Court by its judgment dated 17th August, 1960 in second appeal No. 1528 of 1952, (Town Area Committee v. Chhedilal). He pointed out that the U. P. Town Area Amendment Act (No. 5 of 1953) on which the Town Area Committee relied in their opposition to the execution of the decree in dispute, was passed in 1953 and the Committee could have asked this Court to decide their second appeal according to the rights of the parties in the light of the changes in law which had taken place after the decree had been passed, I have perused the decree of this Court in second appeal No. 1528 of 1952. It appears that the appeal was dismissed because it was not pressed. Counsel for the Committee stated before the Court that in view of the change in law the decree appealed against could not be executed and therefore, it was not necessary to press the appeal which was consequently dismissed, They were ill-advised and must face the consequences.

If a party informs the appellate court that the law has changed in his favour since the appeal was filed, but also states that he does not want to press the appeal as he thinks that the change of law is sufficient to defeat the impugned decree without its being formally reversed, and the court dismisses the appeal, the result must be that the decree of the lower court stands confirmed. He cannot subsequently rely on the change in law to defeat the execution of a decree which he could have had dismissed (sic) in appeal but did not. The respondent has in his favour a decree which was validly passed by a court of competent jurisdiction according to the law prevailing on the date of the decree. There has been no change in law after the dismissal of the earlier second appeal. The appellate court erred in holding that the plaintiff respondent is not entitled to execute his decree. This appeal, therefore, is dismissed but in the circumstances I direct the parties to bear their own costs throughout.


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