1995 Supreme(Mad) 941

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE ABDUL HADI
Madras Hardware Mart rep. by Partner Hussain Bai, Fidasubbain
Versus
V. Hutcheeswaran & Others
C.R.P. Nos. 711 of 93 & 4, 5 & 7 of 1995
Decided On :Decided On : 22-11-1995

A final decree for partition does not become enforceable unless and until it is engrossed on sufficient stamp paper.

Headnote:

PARTITION SUIT - EXECUTION OF FINAL DECREE - LIMITATION - ARTICLE 136 OF THE LIMITATION ACT, 1963 - WHETHER THE FINAL DECREE BECOMES ENFORCEABLE ONLY WHEN IT IS ENGROSSED ON THE REQUISITE STAMP PAPERS PURSUANT TO RELEVANT PROVISIONS OF THE STAMP ACT.

Fact of the Case:

A partition suit was filed and a preliminary decree for partition was passed on 28.4.1972 and final decree for partition was passed on 1.12.1975. The first defendant in the suit is the father and the second, third and fourth defendants and the first plaintiff are the sons. The first plaintiff died and hence the other plaintiffs were brought on record as his legal heirs. The suit relates to one house property and the preliminary decree declared 1/5th share in the said property to each of the first plaintiff and first defendant to fourth defendant. The above said final decree directed the first plaintiff, second and third defendants to sell their 3/5th share in all to the first and fourth defendants who owned the other 2/5th shares together. The fifth defendant was the mortgagee under the mortgage dated 7.3.1970, of the suit property from the first defendant. The 5th defendant assigned the said mortgage on 24.7.1975 to the 6th defendant who was a tenant of a portion of the said property. The 6th defendant was not a party originally but he was impleaded by order in I.A. No. 5641 of 1978. First defendant sold his 1/5th share under sale deed dated 16.5.1975 to 6th defendant. 4th defendant sold his 1/5th share under another sale deed dated 16.5.1975 to 6th defendant. These two sale deeds were thus prior to the above said final decree for partition. After the final decree for partition, plaintiffs sold their 1/5th share to 6th defendant by sale deed dated 16.2.1976, and 3rd defendant also sold his 1/5 share to 6th defendant under sale deed dated 3.3.1976. Thus 6th defendant became the owner of 4/5th share in the said suit property. But 2nd defendant did not sell his 1/5th share to 6th defendant, despite the direction in the above said final decree dated 1.12.1975. First and fourth defendants also, the decree holders in the above said final decree, did not file Execution Petition for getting the sale deed pursuant to the final decree. But, it is said that they assigned the above said final decree in favour of 6th defendant on 25.1.1984. After the said assignment 6th defendant filed I.A. No. 10085 of 1987 praying for condonation of the delay in depositing the required stamp for being engrossed in the final decree so that the Execution Petition could be filed for executing the final decree. That I.A. was allowed by order dated 23.2.1987 whereby the delay was condoned. Thereafter 6th defendant filed E.A.V. in S.R. No. 42580 of 1990 under O. 21, R. 16 of the C.P.C. in December 1990, (that is, beyond 12 years from the date of the final decree, namely, 1.12.75), for granting permission to it, the assignee decree holder, to execute the said final decree. The said Execution Application was filed against 2nd defendant/judgment debtor alone since the said 2nd defendant alone had not executed the sale deed in respect of his 1/5th share.

Finding of the Court:

The court below rejected the Execution Application as out of time, observing that the failure on the part of the 1st and 4th defendants to submit the stamp papers for the drafting of the final decree will not save the limitation. The court held that the Execution Application was out of time, presumably as per Art. 136 of the Limitation Act, 1963 which provides for a limitation period of 12 years only.

Issues: Whether the final decree for partition becomes enforceable only when it is engrossed on the requisite stamp papers pursuant to relevant provisions of the Stamp Act.

Ratio Decidendi: The court held that the final decree for partition does not become enforceable unless and until it is engrossed on sufficient stamp paper. The court relied on the following judgments: * A.I.R. 1938 Madras 307 = 47 L.W. 51 (D.B.) * A.I.R. 1956 Madras-207=69 L.W. 18 (F.B.) * (1993) 1 M.L.J. 426 * (1995)-3-S.C.C. 412 = 1995-1-L.W. 568 The court also held that the view expressed in (1995) 1 M.L.J. 147, which held that the final decree for partition becomes enforceable from the date of its pronouncement, is not good law.

Final Decision: The court set aside the impugned order dated 3.9.1991 in the Execution Application and remanded the Execution Application back to the Execution Court for dealing with the said Execution Application on its merits. The Civil Revision Petition No. 711 of 1993 was allowed, however, in the circumstances of the case, no costs. The Civil Revision Petition Nos. 4, 5 and 7 were dismissed with costs.