IMPORTANT POINT
The main legal point established in the judgment is that the appellate court, not the trial court, is responsible for engrossing and retaining the final decree on stamp paper, as per the relevant statutory provisions.

ORDER :

Anil K. Narendran, J.

The appellants are the applicants. They seek a direction to Registry to engross the final decree passed by this Court in the appeal on non-judicial stamp paper of requisite value by getting the same produced by the parties.

2. R.F.A.No.108 of 2003 was disposed of along with R.F.A.No.234 of 2006, vide judgment dated 02.11.2016. A final decree was accordingly passed, which was based on the memorandum of settlement executed between parties in the mediation held on 16.09.2016. The decree is yet to be drafted and engrossed on the stamp paper. Hence, the appellants in R.F.A.No.108 of 2003 have filed this application.

3. Heard the learned counsel for the applicants/appellants and the learned counsel for the respondents.

4. Earlier appellants in R.F.A.No.108 of 2003 filed I.A.No.1 of 2020 seeking the same relief and that was allowed as per the order dated 02.09.2022. The final decree directs to Object divide the property in question into two; plot No.1 is allotted to Sri.Christudas, who is defendant No.3 and plot No.2 is allotted to the plaintiffs in O.S.No.8 of 1996. The plaintiffs are the appellants in R.F.A.No.108 of 2003 and the 3rd defendant is the 3rd respondent in R.F.A.No.108 of 2003.

5. In Brenda Barbara Francis v. Adrian Miranda 'Halcyon' Pakkattuvila, Kunnukuzhi [2023 (3) KHC 93] a Division Bench of this Court held that the power to engross a final decree on non-judicial stamp paper is with the trial court after culmination of the proceedings in the appeal, and attainment of finality of the decree. It was further held that once the final decree is engrossed on stamp paper, the original shall be given to the person concerned on his application and the copy be kept with the case records.

6. The learned counsel for the 3rd respondent would submit that the said propositions of law are against the relevant provisions in the Civil Rules of Practice, 1971 (Kerala), the Kerala Stamp Act, 1958 and the Registration Act, 1908. It is submitted that the provisions of the Stamp Act and the Registration Act were not considered in that decision. It is urged that the said dictum is against the express provisions of Rules 237 and 238 of the Civil Rules of Practice. Accordingly, the learned counsel would submit that the said decision did not lay down any binding precedent and shall not stand in the way of directing Registry to engross the decree in these appeals on non-judicial stamp paper to be furnished by the respective parties.

7. In Brenda Barbara Francis [2023 (3) KHC 93] the Division Bench took the view that on a decree being passed, as the case may be, by the first appellate court or the second appellate court, the decree of the trial court merges with the appellate decree and it is the trial court, which is to execute such a decree. The very same principle is applicable to a decree of partition of immovable property, when it requires documentation as mandated by the provisions of the Registration Act. Once the right of parties is finally adjudicated, that would constitute a decree as defined under Section 2(2) of the Code of Civil Procedure, 1908 (for brevity 'the Code'). Thereafter, the matter shall go back to the trial court where only the requirement of engrossing the decree on stamp paper shall be carried out. The Division Bench explained that the expression ‘by the court’ made mention of in Rule 237 of the Civil Rules of Practice stands for the trial court.

8. The insistence of Rule 237(1) of the Civil Rules of Practice is that the decree in a partition suit, which is engrossed on non-judicial stamp paper, shall be retained by the court and copies of the same shall be furnished to the parties. The Division Bench in Brenda Barbara Francis [2023 (3) KHC 93] held that the final decree, which has been engrossed on stamp paper would be the document of right, title or interest of the parties to it and therefore, the original shall be given to “such person on his application”.

9. Rule 187 of the Civil Rules of Pract