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Laxman Minaji Chaugule Vs. Narayan Appayya Chaugule - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 145 of 1957
Judge
Reported inAIR1961Kant172; AIR1961Mys172; ILR1960KAR883
ActsLimitation Act, 1908 - Schedule - Articles 181 and 182; Indian Stamp Act - Schedule - Article 45 - Sections 2(15), 33 and 57; Code of Civil Procedure (CPC), 1908 - Sections 32
AppellantLaxman Minaji Chaugule
RespondentNarayan Appayya Chaugule
Appellant AdvocateB.G. Raikar, Adv.
Respondent AdvocateH.B. Datar, Adv.
Excerpt:
.....raikar proceeds to argue therefore that in a case like this where the partition suit must be regarded to have been pending even on july 22, 1954 when the decree-holder supplied the requisite stamp paper, limitation for the execution of the decree could not have run or commenced before that date......to have been pending even on july 22, 1954 when the decree-holder supplied the requisite stamp paper, limitation for the execution of the decree could not have run or commenced before that date.it may be that at first sight the principle enunciated in ilr 32 cal 483 which was followed in the other cases to which i have already referred, might appear to lend some support to the contention urged by mr. raikar that if a partition suit continues to be pending as a suit until the decree directed to be drawn up in it is actually drawn up and engrossed on a stamped paper, limitation for the execution of that decree cannot run or commence until such engrossment. the view taken by the high courts of calcutta, patna, lahore, madras and punjab to the contrary might appear somewhat.....
Judgment:

1. This is an execution appeal in which the appellant is the decree-holder. On March 18, 1947, in a partition suit brought by the decree-holder, a compromise decree was made at the request of the parties. On April 26, 1947, that decree was signed.

2. The decree-holder who had to produce non-judicial stamped paper on which the partition decree should have been engrossed, produced that stamped paper only on July 22, 1954. Thereafter the engrossment of the decree on such non-judicial stamped paper was made on July 23, 1954. The decree-holder presented the application for the execution of that decree on September 6, 1954.

3. The judgment-debtor objected to the execution of the decree on the ground that it wasbarred by limitation since the application had notbeen presented within three years from the dateof the decree which was made on March 18, 1947,and which was signed on April 26, 1947. Theexecuting Court repelled that contention and directed execution to proceed. From that order thejudgment debtor appealed. The District Judge, Belgaum who hoard that appeal allowed it, taking theview that the execution application was barred by;limitation. The decree-holder appeals. ]

4. The contention urged on behalf of the decree holder is that the decree came into existence only on July 23, 1954 when it was signed after its engrossment on non-judicial stamped paper and until then, according to the argument, the suit itself must be regarded to have been pending. The decree which was signed on plain paper on April 26, 1947, according to the decree-holder had no validity and was no decree in the eye of law since the Court which made that decree had no power to draw up a decree on plain paper in violation ot the provisions of the Stamp Act. It was thus argued that the execution application was well within time.

5. Now, the definition of an instrument of partition contained in Section 2(15) of the Indian Stamp Act also includes a decree made by a Civil Court for effecting a partition. If is therefore clear that the decree in the partition suit with which we are concerned, in order to be effective, should have been engrossed on non-judicial stamped-paper as if it was an instrument of partition. The short question to be decided in this appeal is whether under Article 182 of the Limitation Act, limitation for the execution of the decree in this case commenced when the decree was made on March 18, 1947, or signed on April 26, 1947, when it was drawn up on plain paper or whether limitation did not start until the engrossment of the decree On non-judicial stamped paper on July 23, 1954. One more question on which arguments were presented by Mr. Raikar appearing on behalf of the decree-holder is whether the Article of Limitation applicable to an execution application in a case like this is Article 182 of the Limitation Act or Article 181.

6. In Kishori Mohan v. Provash Chandra : AIR1924Cal351 , their Lordships of the High Court of Calcutta took the view that in the case of a decree for partition limitation ran from the date of the decree as provided by Article 182 of the Limitation Act and that where such decree was not engrossed on non-judicial stamped paper of the requisite value, the date on which the judgment is pronounced is the date on which such limitation begins to run although no formal decree could bo drawn up in such suit until the paper bearing the proper stamp under Article 45 of the Stamp Act is supplied to the Court. That was a case in which the decree bore the date March 25, 1914. The application for its execution was made on July 21, 1920. It appears that the decree was signed by the Judge on January 2, 1920 on which date the decree-holder supplied the stamped paper on which it had to be engrossed.

The contention urged on behalf of the decree-bolder was that the execution application presented on July 21, 1920, must be regarded to have been presented within the period of limitation prescribed by Article 182 of the Limitation Act since the date of the decree from which limitation could run was the date on which the decree was signed by the Judge on non-judicial stamped paper of the requisite value. That contention was repelled by their Lordships of the High Court of Calcutta on the ground that the date of judgment which was delivered on March 21, 1914, was the date from which limitation began to run and on page 352 of the Report, this is that Richardson, J., observed:

'The delay in signing the decree was due not to any fault of the Court or to any cause beyond the control of the parties but solely to the delay of the parties in supplying the requisite stamped paper, any party desiring to have the decree executed might have furnished the stamped paper at any time leaving the expense of providing it to be adjusted by the Court in connection with the costs cf the execution.

The circumstances disclose no ground for saying that limitation did not run from the date of the decree as provided by Article 182 of the Limitation Act reference being made to Golam Gaffar Mandal v. Goljan Bibi. 25 Cal 109 and Bhajan Behari Shaha v. Girish Chandra Shaba, 17 Cal WN 959.'

This view expressed by their Lordships of the High Court of Calcutta has been followed by other High Courts. In Ram Narain v. Maharaj Narain, AIR 1940 Lah 337. Bhide. J., also expressed the view that for the purpose of limitation under Article 182 the date of the decree in a partition suit must be taken to be the date on which the order for drawing up the final decree was passed and not the date on which the necessary stamped paper for drawing up the decree was supplied by the decree-holder.

In the course of his judgment the learned Judge referred with approval to the decision of the High Court of Calcutta in : AIR1924Cal351 referred to above. In Banwari Narain v. Ramhari Narain, AIR 1942 Pat 335 their Lordships of the High Court of Patna enunciated the principle that under Article 182 of the Limitation Act the date of the decree is the day on which judgment is pronounced and consequently limitation for execution of a partition decree runs from the date on which the judgment is pronounced although no formal decree can be drawn up in a partition suit until paper bearing a proper stamp under the Stamp Act is supplied to the Court.

The same principle emerges from another decision of that Court in Md. Sidique Mian v. Mahabir Sao, AIR 1942 Pat 410. That was a case in which after a preliminary decree for mesne profits was made the Court directed a final decree to be prepared in terms of the report of the Commissioner who had been appointed to ascertain mesne profits and that no decree should be prepared unless deficit court-fee was paid. It was held by their Lordships, that for the purpose of computing limitation under Article 182 in respect of an application made for the execution of the decree so made, the date of the judgment should be taken to be the date of the decree and not the date on which the deficit court-fee was paid.

Their Lordships repelled the contention that a later order which was made by the Court in that suit directing a final decree to be drawn up after the deficit court-fee had been paid could not be regarded as a final decree in the suit for the purpose of limitation and that limitation commenced to run from the date on which the adjudication was finally made in regard to the mesne profits payable to the plaintiff and the preparation of the final decree in terms of the Commissioner's Report was directed.

7. In China Venkatappa v. Peda Venkatappa, AIR 1943 Mad 650, their Lordships of the High Court of Madras took the view that the date of the decree in a partition suit for the purpose of Article 182 is the date on which the judgment is pronounced and limitation runs from that date although the party in whose favour the decree has been passed has not furnished the stamped paper for the purpose of drawing up of the decree and that it was not correct to say that in a partition suit, until the final decree has been drawn up on non-judicial stamped paper of the required value time does not begin to run. This view rested on the decision of their Lordships of the High Court of Calcutta in : AIR1924Cal351 . The same view was expressed by Kapur, J., in Siri Ram v. Jagan Nalh, (S) .

8. From these decisions it appears that it is a firmly established rule that in a case of a partition decree the date of commencements of limitation for an application for its execution is the date on which the judgment is pronounced directing the final decree to be drawn up and not the dale of the engrossment of the decree on non-judicial stamped paper. But Mr. Raikar has Contended that the view taken in the above cases cannot be regarded as correct. His argument was that it is well settled law and that there is a long line of cases in which that principle has been enunciated that a Court which makes a partition decree has no power or competence to draw up a decree until non-judicial stamped paper of the requisite value is supplied to it.

Until the engrossment of tbe decree on such paper, Mr. Raikar contended, the view that has been uniformly taken by the various Couris was that the partition suit must still be regarded as pending. Mr. Raikar also urged that tbe Court which tries a partition suit has no power to draw up a decree on plain paper as the Court which made the partition decree did in this case and that even if it did so, the decree so drawn up on plain paper has no validity or existence in the eye of law.

9. In support of his contention, the decision cited by Mr. Raikar was that of the High Court of Calcutta in Jotindra Mohan Tagore v. Bejoy Chand Mahatap, ILR 32 Cal 483. That decision, it appears to me, proceeded on the peculiar acts of that case. That was a case in which in a suit for partition, after a decree for partition was made an application was made under the provisions of Section 32 of the Code of Civil Procedure then in force for the addition of a party.

The question was whether that application could be granted after the partition suit had ended in a decree. It appears that on the date of the presentation of that application the decree had not been engrossed on stamped paper as required by the Stamp Act. Their Lordships were of the view that a suit lor partition, even when the report of the Commissioners is confirmed and a decree is directed to be drawn in accordance therewith, must be regarded as still pending until the Court signs the final decree.

It was also pointed out by them that the decree for partition, to be operative, must be engrossed on stamped paper required by the Stamp Act and it cannot be said that the suit has terminated until the Judge signs the decree so engrossed. It will thus be seen that the only assistance which Mr. Raikar can derive from this decision in support of his proposition is that a partition suit continues to be pending until the decree made in it is engrossed on stamped paper of the value specified in Article 45 of the Stamp Act.

10. The decision is this case was followed up by their Lordships of the High Court of Madras in Satyanandan v. Nammayya : AIR1938Mad307 . That was a case in which, after a partition decree was made, but before its engrossment on the requisite stamped paper, the decree-holder executed the decree in the course of which some properties which were sold in such execution proceedings were purchased by the auction purchaser. The decree itself was engrossed on a stamped paper of the proper value after such sale had taken place.

Their Lordships were asked to hold that the subsequent engrossment of the decree on a stamped paper had the effect of validating the execution sale which had previously taken place. Their Lordships repelled that contention and held that until the engrossment of the decree on a stamped paper as required by the Stamp Act, the decree was an in executable decree. Their Lordships' view in this case rested again on the decision of their Lordships of the High Court of Calcutta to which I have already referred and does not therefore afford any guidance on the question of limitation involved in this appeal.

11. Mr. Raikar then relied in support of his contention on a Full Bench decision of the High Court of Madras in Board of Revenue v. Moideen Rowther, (S) AIR 1956 Mad 207. That was a case in which their Lordships were considering a reference under Section 57 of the Stamp Act by the Board of Revenue. The question involved in that reference was whether where the parties fail to furnish the requisite stamps for a final decree for partition, the Court has power to draw up a decree on unstamped paper and sign it and thereafter impound it under Section 33 of the Stamp Act.

Their Lordships took the view, it was not permissible to adopt that course since a decree can only be engrossed on a stamped paper of sufficient value. The earlier decision of that Court in AIR 1938 Mad 307 and the decision of the High Court of Calcutta in ILR 32 Cal 483 were referred to in the. course of the judgment of their Lordships as supporting that proposition.

12. But it should be noticed that in the course of the judgment in that case, Rajamannar, C. J. referred to the decision of the High Court of Madras in AIR 1943 Mad 650 with approval. That was a case in which the question of limitation was directly involved and considered by their Lordships who came to the conclusion that the date on which limitation commences for the execution of partition decree is the date on which that decree is directed to be drawn up and not the date on which it is actually engrossed on a stamped paper.

Mr. Raikar could therefore draw no sustenance for his contention from the Full Bench decision of the High Court of Madras. In Probhat Kumar v. Santi Ranjan, : AIR1957Cal375 on which Mr. Raikar next depended, the only question that was decided was whether any legal title at all vests in the properties to the parties under an arrangement in pursuance of which a partition decree was made where no final partition decree had been formally engrossed on the requisite stamped paper. All that was decided was that as long as a formal partition decree was not engrossed on a requisite stamped paper and the formal decree was not signed by the Judge, the parties did not acquire any legal title to the property so allotted to them.

13. Mr. Raikar next drew my attention to a decision of this Court in Kapila Bai v. H. S. Madhava Rao, AIR 1957 Mys 71. That was a case in which after a preliminary decree in a partition suit was mad a delivery warrant was issued for division of the properties by metes and bounds. The warrant was duly executed and returned with an endorsement that the delivery was effected. On the basis of that endorsement, the Court made a final decree which was ordered to he drawn up.

Subsequently, one of the parties made an application in which she alleged that the properties had not been divided and that she was not put in possession of her share and that the endorsement on the warrant that division had been effected and that she was put in possession of her share was false. The question was whether the Court had power to make an enquiry into that application.

In corning to the conclusion that the Court was competent to enquire into that application, Padmana-bhiah, J. expressed the view that a final decree for partition passed by a Civil Court being an instrument of partition as defined under Section 2(15) of the Stamp Act, such decree has to be engrossed only on stamped paper of sufficient value and until such engrossment is made the final decree cannot be deemed to have any existence.

The learned Judge also expressed the view that the Court had no power to draw up a final decree on plain paper and sign it if the required stamped paper was not furnished or was not available. In support of this view, the learned Judge relied on the two decisions of the High Court of Madras AIR 1938 Mad 307 : (S) AIR 1956 Mad 207 (FB), to which I nave already referred.

14. The argument addressed by Mr. Raikar was that the principle which clearly emerges from the decisions on which he relied was that a partition suit continues to be pending until the engrossment of the decree made in it is made on a stamped paper. That was the principle which was enunciated by their Lordships of the High Court of Calcutta in ILR 32 Cal 483 and followed by their Lordships of the High Court of Calcutta in a subsequent case and by their Lordships of the High Court of Madras in the other cases referred to above. The decision of this Court, according to Mr. Haikar, also accords with that view.

15. If a partition suit continues to be pending in that way united the engrossment of the final decree made in it On a stamped paper, Mr. Raikar suggests that it would be incorrect to take the view that limitation for the execution of a decree which has not yet come into existence can at all run under the provisions of Section 182 of the Limitation Act. According to Mr. Raikar, until the decree is so engrossed on a stamped paper, although a final decree is directed to be drawn up and is drawn up on a paper of either insufficient value or on plain paper, that decree has no existence and is therefore incapable of execution. Mr. Raikar proceeds to argue therefore that in a case like this where the partition suit must be regarded to have been pending even on July 22, 1954 when the decree-holder supplied the requisite stamp paper, limitation for the execution of the decree could not have run or commenced before that date.

It may be that at first sight the principle enunciated in ILR 32 Cal 483 which was followed in the other cases to which I have already referred, might appear to lend some support to the contention urged by Mr. Raikar that if a partition suit continues to be pending as a suit until the decree directed to be drawn up in it is actually drawn up and engrossed on a stamped paper, limitation for the execution of that decree cannot run or commence until such engrossment. The view taken by the High Courts of Calcutta, Patna, Lahore, Madras and Punjab to the contrary might appear somewhat irreconcilable with the view expressed by at least two of those Courts that a partition suit continues to be pending as a suit until the engrossment of the decree made in it is made on a stamped paper of requisite value.

16. But it seems to me that having regard to the declaration of the law made by the Supreme Court in Yeshwant v. Walchand, : [1950]1SCR852 , it is no longer possible for Mr. Raikar to contend that limitation for the execution of decree in a partition suit docs not run until its engrossment on a stamped paper. In the above case decided by their Lordships of the Supreme Court the decree provided that the decree-holder should pay the deficit court-fee on the decretal amount before its execution. The view taken by their Lordships was that such a decree was capable of execution on the very date on which it was passed and could not be said to be inexecutable until the payment of the deficit court-fee which the decree-holder was directed to pay. On page 18 of the Report, this is what Chandrasekhar Aiyar J. observed :

'The decree was not a conditional one in the sense that some extraneous event was to happen on the fulfilment of which alone it could be executed. The payment of court-fee 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; it was a decree capable of execution from the very date it was passed'. So tested, the decree in the partition suit which was made in this ease was capable of execution from the very date on which it was made since the decree-holder could have supplied the stamped paper on which it had to be engrossed immediately after it was made and there was nothing to prevent him from so doing. Any other view would lead to the strange result that there being no statutory period of limitation within which a decree-holder has to supply the requisite stamped paper on which the decree for partition has to he engrossed, it would be within the power of the decree-holder to indefinitely postpone the supply of such stamped paper and arrest the commencement bf limitation.

17. In my opinion, the view taken by the District Judge that the execution application presented by the decree-holder was barred by limitation does not require to be disturbed. This appeal fails and is dismissed; but I make no order as to costs.

18. Appeal dismissed.


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