A final decree for partition is an instrument of partition as defined in Section 2 (15) of the Stamp Act and is chargeable with duty under Article 45 of Schedule I to the Stamp Act. An execution Court has no jurisdiction to act upon a final decree which is not engrossed on a proper stamp paper. A sale of property and delivery of possession to the auction purchaser in execution of a final decree which is not engrossed on a proper stamp paper are without jurisdiction and are nullities.

( 1 ) THIS judgment will dispose of two Execution Second Appeals; ESA 9 of 1972, filed by Shahabia Begum, and ESA 10 of 1972, filed by Sharfuddin. The appeals are directed against two separate judgments both dated April 12, 1972 of the learned Additional District Judge, Delhi, dismissing their first appeals against the orders of the execution Court dismissing their respective objections to the sale of certain property in favour of Pukhraj Begum and to the delivery of its possession to her.

( 2 ) SHAHABIA Begum, appellant in ESA 9 of 1972, herein called the appellant , is the widow of Wahabuddin who died on June 26, 1961 leaving behind him, the appellant his son, Sharfuddin, respondent No. 6 in ESA 9 of 1972 and appellant in ESA 10 of 1972, Pukhraj Begum, widow of his pre-deceased son, who is respondent No. 1 in both the appeals, and her children, respondents Nos. 2 to 5 in both the appeals. On June 25, 1968, Pukhraj Begum and her children, respondents Nos. 1 to 5, and Shahabia Begum, the appellant, as plaintiffs Nos. 1 to 6, filed a suit for partition of a house, against Sharfuddin, On May 18, 1970, a preliminary decree for partition was passed declaring the shares of the parties as follows: Shahabia Begum-2/ 16th; Sarf-ud-din-7/16th; and respondents Nos. 1 to 5 7/16th. A local commissioner was appointed to effect partition, who reported that the property was not partible. No objections having been filed, the report was accepted on July 16, 1970, and the property was held to be impartible. On July 17, 1970, an order for final decree for partition was passed holding the property to be impartible and directing that it should be auctioned and the sale proceeds be divided amongst the parties according to their shares as fixed above. Costs were also awarded in favour of the plaintiffs against the defendant. On the same day, a decree sheet on a plain paper in the prescribed form was prepared and signed.

( 3 ) THE decree-holders filed the first execution application on July 22, 1970 for sale of the property. Permission was also sought by Pukhraj Begum to bid at the auction, which was granted. The auction took place on September 8, 1970 and the property was sold for Rs. 8000. 00 in favour of Pukhraj Begum. She was permitted to deposit in Court the shares of me judgement-debtor and others, which she did. On November 20, 1970 objections to the sale were filed, but were dismissed. The sale was confirmed and sale certificate was duly Issued.

( 4 ) ON December 8, 1970, another application was filed praying for delivery of possession to the auction purchaser (Pukhraj Begum ). It was at this stage that Shahabia Begum, the appellant, filed two objection applications, one dated December 8, 1970, under Section 151 of the Code of Civil Procedure, and the other dated January 15, 1971, under Section 47 and certain other provisions of the Code. Sharf-ud-din also filed objections dated December 8, 1970 under Sections 47 and 151 of the Code of Civil Procedure. The main point involved in the objections filed by both was common, viz. that the sale effected in pursuance of the aforesaid final decree was without jurisdiction as the final decree itself not having been engrossed on the requisite stamp paper, was defective and unenforceable. Both objections were, however, dismissed on April 29, 1972 by two separate orders. The appeals were likewise dismissed by the Additional District Judge again by two separate orders. Feeling aggrieved, both the aforesaid objectors have filed two separate second appeals, as mentioned above.

( 5 ) MR. V. B. Andley, appearing on behalf of Shahabia Begum in ESA 9 of 1972, whose arguments were adopted by Mr. Gauri Shankar, appearing on behalf of Sharf-ud-din in ESA 10 of 1972, has raised two contentions:

(1) That the decree was required to be engrossed on a proper stamp paper as an instrument of partition, as defined in Section 2 (15) of the Stamp Act. As the same was not so engrossed, it could not be acted upon an