A decree-holder can amend an execution petition and the judgment-debtors can file their objections to the execution, even if the decree sought to be executed had been vacated.

S. C. MOHAPATRA, J.

( 1 ) THIS Civil Revision arises out of an order of the learned Subordinate Judge, Nayagarh, refusing to permit the petitioners to file their objection under S. 47, Civil P. C. to the execution of a final decree in a suit for partition. While accepting the revision for further hearing, interim stay of further proceeding in the execution case was passed. Decree-holder-opposite party No. 1 appeared and filed an application for vacating the order of stay. While considering the said petition, I directed the matter to be heard finally without waiting for the service return of notice to the other judgment-debtors who did not have any grievance against the impugned order.

( 2 ) EXECUTION Proceeding No. 13 of 1982 was filed for execution of the final decree dt. 17-8-1982 in the partition suit. The said decree was set aside by this Court on 8-11-1982. The proceeding in execution remained stayed pending disposal of the final degree proceeding after the final decree was cated (sic) by this Court. The second final decree was passed on 2-9-1983. One year thereafter on 14-11-1984, the Executing Court vacated the interim stay granted. On 5-12-1984, the certified copy of the second final decree was filed in the execution proceeding. From the record it is seen that notice of filing of the certified copy of the second final decree had been given to one Advocate. The case of the petitioners judgment-debtors is that their Lawyer Mr. S. C. Mohapatra who was entrusted with the conducting of the entire execution proceeding having joined judicial service, they could not know about the further stages of the Execution Proceeding. Coming to know that the said proceeding was pending, they filed an application on 23-9-1985 to get an opportunity to file objection to the execution case. The said prayer having been refused, the present Civil Revision has been filed.

( 3 ) MR. Mohanti, the learned counsel for the petitioners may be technically correct to submit that the Execution Proceeding cannot continue when the decree sought to be executed had been vacated. This question, however, need not be given much importance as there would be no bar for the decree-holder to file a fresh execution proceeding since such a proceeding would not be barred by limitation or on any other ground. When there is a second decree which is alleged to be substantially the same as the first one, the ends of justice would be served by allowing the decree-holder to amend the petition giving the correct particulars.

( 4 ) ALL the judgment-debtors have been served with notice of the Execution Proceeding. Some of them have filed objection. When I am giving opportunity to the decree-holder to amend the execution petition, there will be no prejudice to give opportunity to the petitioners to file objection, if any, to the execution.

( 5 ) I find that the certified copies of the decree dt. 17-8-1982 and decree dt. 2-9-1983, do not bear the proper fees under Sch. 1, Art. 7 of the Court-fees Act which provides that no document under S. 6 of the Court-fees Act is to be received by the court on which proper fee has not been paid. Under the Court-fees Act, no power is left with the court to avoid S. 6 of the Act. Inherent power of the Court would not give such a power which would be contrary to the provisions of law itself. In a Republic governed by rule of law, this provision cannot be ignored till the provision exists. However, where it is possible to give chance to a party to get the defect rectified, harsh view would not be taken.

( 6 ) IN the peculiar facts and circumstances of this revision, I direct the decree-holder to pay the proper fee under the Court-fees Act on the certified copies of the decree on or before 2nd Dec. 1985. The decree-holder shall be given opportunity to amend the execution petition on 2nd Dec. 1985 on filing a proper petition. The judgment-debtors including the petitioners who have not filed their objections shall be given opportunity to file