1. This appeal is brought by the judgment-debtor Municipal Committee, Sonepat, against an order passed in execution by the Senior Subordinate Judge, Rohtak.
2. The facts which have given rise to this appeal are that the plaintiffs Dharam Chand and others on 2-5-1932 brought a suit in the Court of the Senior Subordinate Judge, Rohtak, praying that the defendant Municipal Committee be restrained from levying any terminal tax.
The suit was decreed by the trial Court on 31-10-1933 granting a decree for permanent injunction prohibiting the defendant from recovering terminal tax on exports from or imports in the Travaskis Mandi so tar as the shops of the plaintiffs in that Mandi were concerned.
An appeal was taken to the High Court and Prabhu Dial (probably Prabhu Lal) one of the plaintiffs was not joined in the appeal and legal representatives of Dharam Chand, another plaintiff who died during the pendency of the appeal, were not brought on the record within the period prescribed by the Limitation Act and a preliminary objection was taken that the appeal had abated, but this particular question was not decided.
The High Court affirmed the decree of the Senior Subordinate Judge and passed the decree in the following terms:
'that the appeal be dismissed and that the decree of the Senior Sub-Judge, Rohtak, dated the 31-10-1933 granting the plaintiffs a decree for permanent Injunction prohibiting the defendant from recovering terminal tax on exports from or imports in the Travaskis Mandi, so far as the shops of plaintiffs in that Mandi are concerned, be and the same is hereby affirmed.'
3. Somewhere in February 1952 the Municipal Committee imposed octroi tax on several articles. An application was made on 12-4-1952 by the decree-holders praying that the judgment-debtor should be directed to comply with the decree and be restrained from realizing the octroi tax and proceedings under Order 21, Rule 32, Civil P. C., be taken against it.
The Municipal Committee raised several objections pleading that the decree was in regard to terminal tax and not octroi and that it could levy octroi tax on the goods imported into the Mandi and that the decree related to certain specified articles and not all the goods imported into the Mandi.
The following two issues were thereupon framed by the executing Court:
1. Whether the terminal tax for which this decree was granted also covers the case of octroi tax? O.P.D.H.
2. If issue No. 1 is found in favour of the decree-holder does the decree relate to certain specified articles and not all the goods imported into the Travaskis Mandi? O.P.J.D.
4. The executing Court held that terminal tax covered the case of octroi and that the decree did not relate to specified articles only and orderedexecution to proceed. An appeal was brought to this Court by the Municipal Committee and the , proceedings were stayed in the meanwhile.
5. A preliminary objection has been taken that Dharam Chand, Pokhar Mal and Mohna Mal have died and their legal representatives were not brought on the record within the time specified in the Limitation Act and therefore the appeal has abated as a whole. The death of these persons does not in my opinion affect the rights of the other parties. Dharam Chand was already dead.
There is one other fact which one has to bear in mind that even when the application for execution was made Dharam Chand, Pokhar Mal and Mohna Mal were dead as is shown by the application of the appellants dated the 23-6-1953 and, therefore, it cannot be said that any order passed would affect the rights even of these dead persons because an order passed in favour of a dead person is as much a nullity as an order passed against a dead person, and if these three persons were dead at the time when the application for execution was made there cannot be any valid order in favour of these three persons. I would therefore overrule this objection.
6. As I have said above, the suit brought by the plaintiffs was for an injunction to restrain the Municipal Committee from imposing a terminal tax and the decree of the High Court which is sought to be executed was also an order restraining the Municipal Committee from imposing or realising any such tax. It is true that in the judgment of the High Court reference is made to octroi tax, but what the executing court has to execute is the decree and not the words used in a judgment.
The decree is quite clear as also the prayer in the original plaint that the plaintiffs were asking for an injunction in regard to imposition of terminal tax which had been imposed at that time. I am therefore of the opinion that the learned Judge executing the decree erroneously introduced the words 'octroi duty' in the terminal tax, and the decree was confined to terminal tax only and had nothing to do with octroi duty.
Besides a decree of injunction can only be executed in the manner given in Order 21, Rule 32 of the Code of Civil Procedure. Therefore, if a tax other than the terminal tax has been levied the decree-holders cannot invoke the aid of an executing Court to stop the imposition of that tax. I would therefore allow this appeal, set aside the order of the executing Court and dismiss their application with costs.