TMI Blog2005 (5) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation? 3. The facts are brief and undisputed. In a suit for partition filed against the predecessor-in-interest of the appellants, final decree was passed on 7th August, 1981 in favour of the predecessor-in-interest of the respondents. The stamp papers required for engrossing the decree were furnished by respondents on 25th May, 1982 and the decree was engrossed thereafter. There was no order of the Court directing the parties to furnish stamp papers for the purposes of engrossing the decree. The execution application was filed on 21st March, 1994 in the High Court. The appellant raised objection that the execution application was barred by limitation in view of Article 136 of the Act. The execution court rejected the objection. The order was also upheld by the Division Bench in the appeal. The Division Bench by the impugned judgment held that unless and until the decree is engrossed on the stamp paper it is merely a judgment of the Court and there is no decree available for execution. Therefore, it held that the starting point of limitation in case of execution of a decree in partition suit is the date when the decree is engrossed on the requisite stamp papers as tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stamp paper for engrossing the final decree to the extent of his share declared in the preliminary decree and accordingly on 11th January, 1961 a final decree was engrossed on the stamp paper to the extent of his share. Other parties to the suit whose shares were declared in the preliminary decree did not supply the stamp papers, hence no final decree was made qua them. However, they filed application for execution of the preliminary decree, which was dismissed as barred by limitation. The High Court while dismissing the appeal held that in view of the fact that no final decree was drawn on stamp paper there was no decree in existence for its execution. In this background it was found that no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. Since the final decree had not been drawn, the observations regarding furnishing of stamp paper and engrossment of the final decree thereupon were not germane to the issue involved in the said case. Thus, the said observations are clearly obiter dicta. 9. Therefore, Lokhande's case cannot be said to have laid down the propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus enabled the party interested in executing the decree before it is drawn up to apply for a copy of the last paragraph only, without being required to apply for a copy of the whole of the judgment. 13. After holding that decree becomes enforceable the moment the judgment is delivered, which ultimately decided the question that arose for consideration in the case, the Court went further and observed that there may, however, be situations in which a decree may not be enforceable on the date it is passed. The Court gave three situations by way of illustrations to demonstrate when a decree may not be enforceable on the date it is passed. The third illustration is more pertinent to the present discussion, which is as follows: Thirdly, in a suit for partition of immovable properties after passing of preliminary decree when, in final decree proceedings, an order is passed by the court declaring the rights of the parties in the suit properties, it is not executable till final decree is engrossed on non-judicial stamp paper supplied by the parties within the time specified by the court and the same is signed by the Judge and sealed. It is in this context that the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urview of Article 136 of the Act as regards the enforceability of the decree. It was held that furnishing of stamp paper was an act entirely within the domain and control of the party required to furnish and any delay in the matter of furnishing of the same cannot possibly be said to be putting a stop to the period of limitation being run. The Court observed that:- Needless to record that engrossment of stamped paper would undoubtedly render the decree executable but that does not mean and imply, however, that the enforceability of the decree would remain suspended until furnishing of the stamped paper - this is opposed to the fundamental principle on which the statutes of limitation are founded . The Court has further observed that:- Be it noted that the legislature cannot be subservient to any personal whim or caprice. In any event, furnishing of engrossed stamp paper for the drawing up of the decree cannot but be ascribed to be a ministerial act, which cannot possibly put under suspension a legislative mandate. Since no conditions are attached to the decree and the same has been passed declaring the shares of the parties finally, the Court is not require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op running at the instance of any individual unless, of course, the same has a statutory sanction being conditional. 20. The reference order mentions that the decision of a two Judge Bench of this Court in Renu Devi v. Mahendra Singh and Ors. [2003] 1 SCR 820 would have some bearing. In that case in a suit for partition a compromise decree was made on 13th February, 1978 declaring the share of the parties in the suit property. The final decree was engrossed on the stamp paper on 24th May, 1979. Two parties to the decree gifted the property that fell into their share by a gift deed. Title to these gifted properties was challenged in the title suit. The Trial Court dismissed the suit. On appeal, the First Appellate Court allowed the appeal. On further appeal, the High Court while allowing the appeal held that donors acquired their separate title in the joint property only after the final decree was engrossed on the stamp paper i.e. on 24th May, 1979 and, therefore, they were legally incompetent to gift their property so as to transfer the title to the donees inasmuch as before the decree was engrossed on the stamp paper they did not have any title in the property. 21. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded. Section 2(15) defines 'instrument of partition' as any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue authority or any Civil Court and an award by an arbitrator directing partition. Section 3 provides a list of instruments which shall be chargeable with duty of the amount indicated in Schedule I of the Indian Stamp Act. Article 45 of Schedule I prescribes the proper stamp duty payable in case of an instrument of partition. Section 33 provides for the impounding of the instrument not duly stamped and for examination of the instrument for ascertaining whether the instrument is duly stamped or not. Section 35 provides that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties, authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Section 40(b) provides for payment of the proper duty, if the instrument impounded is not duly stamped. Section 42(1) provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for engrossment of the decree on stamp paper and there is no statutory obligation on the Court passing the decree to direct the parties to furnish the stamp paper for engrossing the decree. In the present case the Court has not passed an order directing the parties to furnish the stamp papers for the purpose of engrossing the decree. Merely because there is no direction by the Court to furnish the stamp papers for engrossing of the decree or there is no time limit fixed by law, does not mean that the party can furnish stamp papers at its sweet will and claim that the period of limitation provided under Article 136 of the Act would start only thereafter as and when the decree is engrossed thereupon. The starting of period of limitation for execution of a partition decree cannot be made contingent upon the engrossment of the decree on the stamp paper. The engrossment of the decree on stamp paper would relate back to the date of the decree, namely, 7th August, 1981, in the present case. In this view the execution application filed on 21st March, 1994 was time barred having been filed beyond the period of twelve years prescribed under Article 136 of the Act. The High Court committed i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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