J U D G M E N T

NEENA BANSAL KRISHNA, J.

I.A. 10007/2023 (u/S 151 of CPC, 1908 by D-1-cum-Counter Claimant for directions)

1. The Application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been filed on behalf of the applicant/defendant No. 1-cum-Counter Claimant seeking modification of the Preliminary Decree dated 18.10.2019.

2. It is submitted in the application that consequent to the demise of Shri Ravi Chand Garg, the father of the parties, on 12.08.2016, the present Suit for Partition was filed inter se the legal heirs of Late Shri Ravi Chand Garg and other co-owners. The parties arrived at a Settlement dated 10.10.2019 in the Delhi High Court Mediation and Conciliation Centre and on the basis of said Settlement, a Preliminary Decree and a final Decree were made on 18.10.2019.

3. Now, in the year 2023, the present application has been filed wherein it is submitted that Smt. Kaushalya Garg, the original defendant No. 2 has died on 23.04.2021 and Shri Sushil Garg, defendant No. 5 has died on 04.05.2021. Both the deceased left their properties which has devolved upon their legal heirs. On account of the demise of the two defendants, the parties are facing difficulty in execution of the Final Decree and the Sale of the properties as there are concerns being raised by the prospective buyers about the entitlement of the legal heirs of the two deceased defendants to the suit properties which is creating an impediment in realising the actual value of the suit properties.

4. It is further submitted that since the final Decree is yet to be engrossed on non-judicial stamp paper, the Preliminary and Final Decree may be re- drawn with the legal heirs of Smt. Kaushalya Garg, the original defendant No. 2 and Shri Sushil Garg, defendant No. 5 being substituted in the original Preliminary Decree itself.

5. The learned counsel on behalf of the defendant No. 1/judgment debtor No. 1/counter-claimant, has placed reliance upon Syed Mohiddin & Ors. vs. Abdul Rahim & Ors., AIR 1964 AP 260; Surjdeo Dubey & Ors. vs. Kripa narayan Tiwary, AIR 1969 PAT 284; S. Narayana Reddy & Ors. vs. S. Sai Reddy, 1990 SCC OnLine AP 12; Dharmaraja Vellalar vs. Ramachandra Vellalar & Ors., MANU/TN/0397/1992; wherein, it was observed that the Final Decree becomes executable only on being engrossed on the requisite stamp paper.

6. Submissions heard.

7. The controversy in hand is whether the legal heirs of the parties to a Final Decree can be permitted to seek a change in the Final Decree on account of demise of some of the parties leading to change in the shares as defined in the Preliminary decree; especially when Final Decree is yet to be engrossed on the requisite stamp paper.

8. In Yeswant Deorao Deshmukh vs. Walchand Ramchand Kothari, 1950 SCC 766, it was held that the payment of court fee i.e. on the amount found due was entirely in the power of the decree-holder and there was nothing to prevent him from paying it then and there; a decree is capable of execution from the very date it was passed.

9. In the case of Hameed Joharan vs. Abdul Salam, AIR 2001 SC 3404, while considering the bar under Section 35 of the Indian Stamp Act, it was held that the prescribed period shall not be allowed to remain suspended, until the stamp paper is furnished and the partition decree is drawn thereon and subsequently signed by the Judge. The Apex Court differentiated between ‘executability’ and ‘enforceability’ of the decree. The word „execution‟ was held to mean the process for enforcing or giving effect to the Judgment of the Court and it is completed when the decree holder gets the money or the relief awarded to him, by the Judgment. Though the decree may not be received in evidence or be acted upon/ enforced in execution due to the non-payment or deficient payment of stamp duty on the decree, but the period of limitation cannot be said to remain under suspension at the volition and mercy of the litigant. The period of limitation starts f