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Nathu Ram and ors. Vs. Madan Gopal and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1038 of 1972
Judge
Reported inAIR1974P& H64
AppellantNathu Ram and ors.
RespondentMadan Gopal and ors.
Cases ReferredGopi Mal v. Vidya Wanti
Excerpt:
.....& a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....in this court, which was dismissed on 6th april, 1966. at the time of the preparation of the final decree on 29th november, 1966, a compromise was effected between the parties, under which in lieu of the claim made by the plaintiff, rs. 10,000/- were paid to her in court and it was agreed by the defendants that they would further pay rs. 50,000/- in two instalments of rs. 25,000/- each. the first instalment had to be paid on or before 31st december, 1966, and the other on or before 31st march, 1967. on that very date, the court ordered that a court-fee stamp of rs. 994/- for the preparation of the decree-sheet be supplied by the plaintiff. a stamp of rs. 980/- was, however, produced before the court for the said purpose by the plaintiff on 13th february 1967. since proper stamp had.....
Judgment:
ORDER

1. The facts giving rise to this revision petition are these. Shrimati Indira Wati filed a suit for partition and accounts against Reghunath Sahai and Nathu Ram. A preliminary decree was passed in this case on 30th November, 1960. Dissatisfied with the same, the defendants filed an appeal in this Court, which was dismissed on 6th April, 1966. At the time of the preparation of the final decree on 29th November, 1966, a compromise was effected between the parties, under which in lieu of the claim made by the plaintiff, Rs. 10,000/- were paid to her in Court and it was agreed by the defendants that they would further pay Rs. 50,000/- in two instalments of Rs. 25,000/- each. The first instalment had to be paid on or before 31st December, 1966, and the other on or before 31st March, 1967. On that very date, the Court ordered that a court-fee stamp of Rs. 994/- for the preparation of the decree-sheet be supplied by the plaintiff. A stamp of Rs. 980/- was, however, produced before the Court for the said purpose by the plaintiff on 13th February 1967. Since proper stamp had not been supplied, the final decree was not prepared. The decree-holder later on made an application to the Court for the refund of Rs. 980/- saying that according to law that much stamp was not needed in the case and as a matter of fact, they had to supply a stamp of Rs. 605/- only, which she would do after the stamp of Rs. 980/- had been refunded to her. This application was allowed by the Subordinate Judge. After the proper stamp of Rs. 605/- was supplied by the plaintiff, the decree-sheet was actually prepared on 12th February, 1971. On the said decree-sheet, three dates were mentioned-(1) 30th November 1960, the date of the passing of the preliminary decree; (2) 29th November, 1966, when the final decree was made; and (3) 12th February, 1971, when the proper stamp of Rs. 605/- was supplied by the plaintiff. On 23rd March, 1971, an execution application for the recovery of Rs. 25,000/-, which was the second instalment to be paid by the judgment-debtors, was put in by the decree-holder alleging that one instalment of Rs. 25,000/- had already been paid.

2. An objection was raised by the judgment-debtors to the effect that long before 12th February, 1971, on which date the proper stamp had been supplied by the decree-holder, not only she but one of the judgment-debtors, namely, Raghunath Sahai, also had died, the former on 13th November, 1967, and the latter on 23rd June, 1967. As no proper final decree had been prepared before 12th February, 1971, the original suit would be deemed to be pending till then and since the legal representatives of both the deceased had not been brought on the record within limitation, the final decree prepared subsequently was a nullity and the same could not be executed.

3. This objection had been repelled by the Court below and against that decision, the present revision petition has been filed by the legal representatives of Raghunath Sahai.

4. After hearing the counsel for the parties, I find that there is no merit in this petition. It had been held by a Full Bench of the Lahore High Court in Gopi Mal v. Vidya Wanti, AIR 1942 Lah 260(FB) that on the supply of the proper stamp by the decree-holder for the preparation of the decree sheet, the validity f the decree would date back to the date of the decree when it was made. Following this decision, it has to be held that when the decree-holder supplied the requisite stamp on 12th February, 1971, the validity of the final decree will date back to 29th November, 1966, on which date the decree was actually passed and at that time both the decree-holder and Raghunath Sahai were admittedly alive.

5. The result is that this petition fails and is dismissed, but with no order as to costs.

6. Petition dismissed.


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