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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Before
The Hon’ble Mr.Justice Dev Darshan Sud,J.
RSA No.189 of 2011 (CR No.363 of 2000).Date of decision: 12.05.2011
Lekh Raj Versus Chunni Lal
CPC - Execution Proceedings - Order 21 Rule 97 - Stamp Act - Limitation Act - Partition Decree - Engrossment on Stamp Paper - Execution Petition Barred by Limitation - Property Not Purchased Pendente Lite
Fact of the Case:
The petitioner filed a revision against the order of the District Judge, which rejected the appeal against the order of the Senior Sub Judge dismissing the petition under Order 21 Rule 97 of the CPC in execution proceedings. The respondent filed an execution petition for the decree of the suit of 1963. The objections under Order 21 Rule 97 CPC were dismissed by the trial Court and the District Judge, holding that the property was purchased pendente lite.
Finding of the Court:
The Court found that the execution petition was barred by limitation as per the Limitation Act and that the property was not purchased pendente lite. The Court also held that the objections filed by the appellant were allowed.
Issues: 1. Whether the execution petition was maintainable beyond the statutory period of 12 years? 2. Whether it can be held that the suit property was brought pendente lite?
Ratio Decidendi: The Court relied on the decisions of the Supreme Court in Hameed Joharan and Dr. Chiranji Lal's case to conclude that the execution petition was barred by time. The Court also held that there was no lis pending as a final decree had been passed in the year 1964.
Final Decision: The appeal was allowed, the judgment of both the Courts below was quashed and set aside, and the execution of the decree was held to be barred by limitation. The execution petition was dismissed, and the objections filed by the appellant were allowed. No order as to costs.
Dev Darshan Sud,J. This revision has been preferred by the petitioner against the order passed by the learned District Judge, Chamba, rejecting the appeal preferred by him against the order of the learned Senior Sub Judge, Chamba, dismissing the petition under Order 21 Rule 97 of the Code of Civil Procedure (hereinafter referred to as ‘CPC’ ) in execution proceedings instituted by the respondent Chuni Lal son of Amar Nath.
2. The facts necessary for determination of this petition are that Civil Suit No.181/63 was instituted in the Court of Senior Sub Judge, Chamba on 10.6.1963 by respondent Chuni Lal son of Amar Nath against Chuni Lal son of Haribhaj. A preliminary decree was passed by the learned Court on 9th September, 1963 directing partition of the suit property to be partitioned by a local Commissioner to be appointed. Thereafter, on 17.9.1964 the Court records:-“ Counsel freekan hazir hain. Freekan report Ex.X anusar bibhajan karne ko razi hain. Atah antim decree final decree anusar report Ex.X bhag har do freek di jave. Report Ex.X va naksha Ex.Y bhi part decree ka bhag schedule mana javega. Sunaya gaya. Misal dakhil daftar hove”.Transliteration:-
“The counsel for the parties present. The parties agree that partition to be effected in accordance with the report Ex.X. Parties be granted land by final decree in accordance with the report Ex.X. Report Ex.X and plaint Ex.Y will form an part of the schedule. Announced. The petition be sent to the record room.”
3. Thereafter, a final decree was drawn up in terms of the order 17.9.1964. An application being CMA No.24 of 1992 was instituted by the respondent herein in which Chuni Lal son of Haribhaj was also a party praying that a final decree for partition be engrossed on stamp paper. This application was decided by the learned Senior Sub Judge, Chamba, holding:-“4 . ... ... ...In this case the decree drawn on 17.9.1964 by the Court on a plain paper is no decree in the eye of law and thus it is to be treated as non-est and the proper and enforceable decree as contemplated by section 2(15) and section 35 of the Stamp Act would be in a non judicial paper of the requisite value and as and when this proper decree is drawn, it is to be treated as instrument of partition and enforceable decree.This being the case the application for engrossing the decree for partition, as prayed for, is allowed and as for the valuation of the property for determining the value of the stamp paper, there is no material on record so as to dispute the value of the share of the applicant in partition at the time of passing of the decree to the extent of Rs.2000/-, and by taking this value as it is the requisite value of stamps works out to be Rs.45/-. The applicant is directed to file the non-judicial stamp papers of the sum of Rs.45/- within a week, after which the final decree be drawn up according and after drawing the same, these papers be placed in the original file and be consigned to the record room.” Announced in the open Court This 19th day of September, 1992 Sd/-(J.L. Chauhan) Senior Sub Judge Chamba District Chamba, H.P.”
4. This decision was challenged in revision in this Court being CR No.211 of 1993. The Court held:- “8.4.1994. Present:- Shri Ashok Sharma for the petitioner Shri Chhabil Dass, for the respondent. Admit. To be heard today. In view of the decision reported in Bholanath Karmakar and Ors Vs. Madanmohan Karmakar and Ors. (AIR 1988 Calcutta 1), the view taken by the Court below is quite correct and does not call for any interference. The Civil Revision is dismissed.
Sd/- (V. Ratnam) April 8, 1994Chief Justice”
5. This is one part of the litigation. In the meantime, the petitioner herein purchased a part of the suit property by a registered sale deed dated 23.3.1997 from Chuni Lal son of Haribhaj, resident of Mohalla Surara. The respondent filed an execution petition for execution of the decree of the suit of 1963. This petition was registered as Execution Petition No.14 of 19
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