JUDGMENT :

Shampa Dutt (Paul), J.

1. Title suit No. 1843 of 2005 was before the learned Judge, 11th Bench, City Civil Court at Calcutta, wherein Preliminary Judgment and Decree was passed and subsequently Final Judgment was passed. Petitioner preferred F.A.T 12 of 2022 challenging the final judgment dated whereby the Hon’ble Division Bench of this Hon’ble Court was pleased to dismiss the said appeal on 25.04.2022, against which a Special Leave to Appeal (C) No(s). 14995 of 2022 being filed, was also dismissed on 24.09.2022 by the Hon’ble Supreme Court.

2. Pursuant to that a Title Execution case No. 58 of 2022 was filed by the decree holders in which an order was passed, fixing date for issuance of writ.

3. Subsequent to the said order, writ of delivery of possession was issued under Order 21 Rule 35 of the Code of Civil Procedure, 1908 and application under Order 21 Rule 97 of the Code of Civil Procedure, 1908 read with Rule 208 of the Civil Rules and Orders registered as Miscellaneous Case being Misc. Case No. 3984 of 2023 was filed.

4. Thereafter an order was passed in the execution case rejecting the recalling application filed by the petitioner herein. Another order was passed rejecting, an application under Section 151 filed by the petitioner for stay of execution. Challenging the said two orders dated 03.01.2024 and 04.01.2024, petitioner has filed the instant revision, praying for non enforcement of decree.

5. The petitioner’s case is that prior to passing of the Final Judgment, the partition commissioner had filed two reports, one a ‘Final report’ and another a ‘Further report’.

6. By virtue of the Final report, the partition commissioner had allotted to the petitioner, the entire ground floor i.e. Lot-B, and on the basis of the said allotment, owelty money was assessed, by virtue of which the petitioner was directed to pay the same to the defendants no. 2 and 3 and to the plaintiffs.

7. The principle contention of the petitioner herein is that the petitioner found that the total stamp duty so assessed by the OSD was not paid by the parties to the partition suit and despite the same, erroneously final decree was drawn up in respect of the all the said shares of the parties. It is further states that the learned executing court had also erred in law, in considering that a partition decree cannot be executed without a partition commissioner.

8. Vide the impugned order dated 03.01.2024, the Executing Court’order in respect of the said issue is as follows:-

“The decree holders have filed a photocopy of the certified copy of the final decree along with stamp duty. The decree was stamped and engrossed”.

9. It appears from the order dated 04.01.2024, that the petitioner herein/ judgment Debtor no.1’s contention before the executing Court was as follows:-

“The judgment debtor no. 1 submits that the decree dated 20.11.2021 was insufficiently stamped and it was well apparent from the office report. So the instant execution case is not maintainable as the decree was insufficiently stamped. The decree holder should have to pay the stamp duty in respect of all the shares of the suit property including the shares of the judgment debtors. Ld. Commissioner's Report was not marked exhibit. As such, the final decree passed in Title Suit No. 1843 of 2005 is not executable.

Ld. Counsel relies on the provisions of Article 45 of Schedule 1A of the Indian Stamp Act relating to Stamp-duty on instruments in West Bengal.”

10. The executing Court considering the materials on record held:-

“From the case record of Title Suit No. 1843 of 2005, it is crystal clear that the Court asked office to assess the stamp duty for drawing up the final decree. Stamp duty was paid by the Decree holder as per office report and the Court accepted the same.

Section 2 (15) of the Indian Stamp Act states that instrument of partition means any instrument whereby co- owners of any property divide or agree to divide such property in severally, and includes also a final order for effec