The main legal point established is that an order for sale of the property, in the context of partition, can be considered a final decree under Section 8 of the Partition Act, and the stamp duty must be paid for drawing the final decree.

Valmiki J. Mehta, J.

CS(OS) 1098/2005 and I.A. No. 6541/2017 (under Section 151 CPC, filed by plaintiffs 1, 2 and D-1)

1. This suit was disposed of by passing a preliminary decree on 7.7.2008. The order dated 7.7.2008 contains detailed terms. The preliminary decree is with respect to both immovable and movable properties.

2. Though, the order dated 7.7.2008 refers to the decree passed as a preliminary decree, however, so far as the suit being decreed for the immovable property bearing no. 6/1, Roop Nagar, Delhi is concerned, the decree will not be a preliminary decree but in fact will be a final decree because it has been directed in the order dated 7.7.2008, in view of para 9 of the joint application filed by the parties, that the property at Roop Nagar will be sold. An order for sale of a property is deemed to be a decree, i.e. a final decree, as per Section 8 of the Partition Act, 1983. Section 8 of the Partition Act reads as under:-

“8. Orders For Sale To Be Deemed Decrees.- Any order for sale made by the court under section 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure, (14 of 1882).”

3. A learned Single Judge of this Court (Hon'ble Mr. Justice Rajiv Sahai Endlaw) vide a subsequent order dated 14.2.2013, and more particularly another later order dated 12.7.2016, has held that the issue of sale of the property or further directions to the Local Commissioner can only be after a final decree is prepared by paying of the stamp duty. A final decree was ordered to be prepared by payment of requisite stamp duty. The order dated 12.7.2016 reads as under:-

“IA No.7970/2016 (of the plaintiffs no.1&2 and defendant no.1 for directions to the Court Commissioner to sell the property).

1. In this suit for partition of property no.6/1, Roop Nagar, Delhi – 110 007, as far back as in 7th July, 2008 a preliminary decree for partition was passed in accordance with the compromise arrived at between the parties. As per the said compromise, the parties had inter alia agreed to sale of the property and for distribution of sale proceeds as provided therein.

2. Thereafter the proceedings have been pending though no steps for a final decree were taken by the parties. On the contrary the parties first attempted to sell the property themselves and thereafter applied to this Court for appointment of a Court Commissioner for sale of the property. However it appears that after the order dated 14th November, 2014 of appointment of Court Commissioner, the parties again tried to sell the property themselves but remained unsuccessful.

3. Now this application has been filed for directions to the Court Commissioner to sell the property.

4. What the plaintiffs are wanting this Court to do is to execute a preliminary decree and which the senior counsel for the plaintiffs/applicants is unable to explain, how is it possible in law. The only step which remains to be taken in this proceeding is passing of a final decree if so desired by the parties and the parties would be required to pay the requisite Stamp Duty on the said final decree and only thereafter the parties can, in accordance with the final decree, seek execution thereof. No execution as is sought to be effected, without passing of the final decree is possible.

5. On enquiry the senior counsel for the plaintiffs/applicants and the counsel for the defendant no.5 appearing on advance notice state that the final decree for partition in terms of the preliminary decree as modified by the Supreme Court vide order dated 5th July, 2013 be passed.

6. It is ordered accordingly. The parties to bear their own costs.

7. Decree sheet be prepared.

8. The Stamp Duty payable on the decree sheet be computed and informed to the parties to enable them to pay the same.

9. Only thereafter can the parties, if desire the assistance of the Court in executing the same, would be entitled to apply to this Court for execution.

10. The suit is disposed of.

11. The date of 5th Septem