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Gian Chand and ors. Vs. Jagan Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 136 of 1956
Judge
Reported inAIR1959P& H482
ActsLimitation Act, 1908 - Article 182 and 182(1)
AppellantGian Chand and ors.
RespondentJagan Nath and ors.
Appellant Advocate D.R. Manchanda, Adv.
Respondent Advocate K.L. Kapur, Adv.
DispositionAppeal dismissed
Cases Referred and Probhat Kumar v. Santi Ranjan
Excerpt:
.....a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & 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. .....of the award with certain modifications agreed to by the parties. the decree had to be drawn up on stamp-paper and the court directed this to be done, but, as the stamp-paper was not furnished for some days, the me was consigned to the record-room.2. on 8-3-1952 jagan nath made two applications -- one for the execution of the decree and the second for the determination of the value of the stamp-paper to be supplied for the decree so that a formal decree could be drawn up. on the execution application, of course, the court official reported that no formal decree had till then been drawn up and, therefore, there was nothing to execute. this execution application was consequently kept pending by order of the court.the other application was considered by thecourt, but before any.....
Judgment:

Dulat, J.

1. On 11-3-1947 Jagan Nath brought a suit for the partition of certain joint property and for rendition of accounts. This was referred to an arbitrator, who made his award in February 1949, and on 9-4-1949 the Court ordered that a decree be made in terms of the award with certain modifications agreed to by the parties. The decree had to be drawn up on stamp-paper and the Court directed this to be done, but, as the stamp-paper was not furnished for some days, the me was consigned to the record-room.

2. On 8-3-1952 Jagan Nath made two applications -- one for the execution of the decree and the second for the determination of the value of the stamp-paper to be supplied for the decree so that a formal decree could be drawn up. On the execution application, of course, the Court official reported that no formal decree had till then been drawn up and, therefore, there was nothing to execute. This execution application was consequently kept pending by order of the Court.

The other application was considered by theCourt, but before any determination, Jagan Nath on18-3-1952 put in another application stating thathe had found that the stamp payable was to beof the value of Rs. 1,775/- and he was thereforefiling such stamp-paper in Court so that the decreemight be prepared. On 20-3-1952 the Courtdirected notice to be issued to the judgment-debtorto show cause why the decree should not be prepared as prayed by Jagan Nath.

Proceedings were kept pending in Court for some time, and in July 1952 it was pointed out on behalf of Jagan Nath that the value of the stamp-paper to be furnished had been wrongly calculated and that stamp of the value of Rs. 575/- was returnable to Jagan Nath. The Court considered the matter and agreed with this view and directed on 26-7-1952 that stamp-paper of the value of Rs. 575/- should be refunded. On 10-10-1952 a formal decree was drawn up on the stamp-paper.

3. The opposite party, Gian Chand and others, appeared in the executing Court and raised a number of objections to the execution proceedings. It was said that the decree had not been drawn up on stamp-paper of sufficient value, that the execution application was in any case time-barred, and that the original execution application had been presented in the Court of the. District Judge and by that Court transferred to the executing Court which was not in order, and further that the decree required compulsory registration. The executing Court overruled all these objections, finding no force in any of them. Gian Chand and others, thereupon, appealed to this Court and the appeal was heard by Kapur J., before whom only two questions were raised-

(1) that, as the decree-sheet had not been prepared by 8-3-1952, no application for its execution was competent on that date and the execution application actually filed was therefore not to be looked at; and

(2) that the second application made for the determination of the stamp-duty payable was not a step in aid of execution within the meaning' of Article 182 of the Limitation Act. Kapur J. held that the execution application filed on 8-3-1952 was competent, and further that, even if it was not, the application made by the decree-holder for the determination of the stamp-duty payable was in this case a step in aid of execution. He found, as a matter of fact, that the required stamp had been filed in Court by the decree-holder on 18-3-1952. On these findings, Kapur J. dismissed the appeal with costs. Gian Chand and others have filed a further appeal under Clause 10 of the Letters Patent.

4. While pressing this appeal before us, Mr. Manchanda felt that the finding of fact by the learned Single Judge that the required stamp-paper had been furnished to the executing Court On 18-3-1952 was the greatest obstacle in his way and, therefore, contended that that was not correct and suggested that the stamp-paper was in fact filed in Court sometime in July 1952. The learned Single Judge, has considered this matter at length and concluded that the stamp-paper was actually filed in the executing Court on the 18th March.

It is admitted that in the petition of that date the decree-holder expressly and pointedly mentioned the fact that he was along with the petition filing the stamp-paper, and it is difficult to believe that if he had not done so the omission would not have been noticed at once and a proper order made by the executing Court. Further, it is admitted that the stamp-paper was purchased by the decree-holder on the 13th March for the very purpose of filing it in Court and it is, as Kapur J. observes, inconceivable that he should not have actually filed it in Court immediately afterwards.

It is true that a note was made in the execution file that the decree had not been prepared for want of stamp-paper but that happened because the stamp-paper was filed along with an application which was attached to the file of the suit and not the execution file. Otherwise thereis no reason whatever to think that the stamp-paper was not furnished on the date it purports to have been In these circumstances, there is in my opinion no reason to disturb the finding of the learned Single Judge that the stamp-duty was furnished by the decree-holder on 18-3-1952.

5. The facts established, thus, are that within three years of the judgment the decree-holder had approached the executing Court with a prayer to draw a proper decree and to execute it, and it is difficult to see what else he could have possiblydone in the matter. Mr. Manchanda relies on the fact that the decree itself was prepared on 10-10-1952 and argues that before that date there was no executable decree in existence, and since by that date i. e., the 10-10-1952, the time for execution had expired, the decree became un-executable. It is impossible to agree with this reasoning..

It is common ground that although the decree may have been prepared on 10-10-1952, it actually dates back to the date of the judgment, i.e., 8-4-1949, and, since it is clear that within three years of that date, i.e., 8th April 1949, an application for execution of the decree had been made, it is impossible to hold that this execution application was in any sense time-barred.Mr. Manachanda referred to four decided cases Maqbul Abroad v. Mt. Afzal-Ul-Nisa, AIR 1936 Lah 1, Board of Revenue Madras v. Moideen Rowther, AIR 1936 Mad 207 (FB), Chikkanarasaiah v. Venkatappa, AIR 1957 Mys 70, and Probhat Kumar v. Santi Ranjan, AIR 1957 Cal 375, but agreed that the facts in none of those cases resemble the present, and the only proposition laid down in those cases is that a partition decree has necessarily to be prepared on a stamp-paper-paper and till this is done the decree is incapable of execution, a pro-position with which there need be no quarrel in the present case, for here the decree sought to be executed was prepared on a stamp-paper and the only question is whether the prayer to execute it was or was not made within time.

I see no force in the suggestion that because this decree was prepared on 10-10-1952 a prayer to execute it made on 8-4-1952 was no such prayer at all and that no proceedings could be subsequently taken on such an application. I would, therefore, hold in agreement with the view of the learned Single judge that the execution proceedings were not barred by time.

6. No other question has been raised before us. The appeal is, in my opinion, without force and must be dismissed with costs, and I would so

Khosla, Ag.C.J.

7. I agree.


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