1. This judgment will dispose of two execution section Appeals Esa 9 of 1972. filed by Shahabia Begum and Esa 10 of 1972, filed by Sharfuddin. The appeal are directed against two separated judgment both date April 12, 1972 of the learned Additional District Judge, Delhi, dismissing their first appeal against the orders of the execution court dismissing their respective objections to the sale of certain property in favor of Pukharj Begum and to the delivery of its possession to her.
2. Shahabia Begum, appellant in Esa 9 of 1972, herein called the appeal is the widow of Wahabuddin who died on June 26, 1961, leaving behind him, the appellant his son, Sharfuddin, respondent No. 6 in Esa 9 of 1972, Pukhraj Begum, widow of his pre-deceased son who is respondent No.1 in both the appeals and her children respondents Nos. 2 to 5 in both the appeals. On June 25, 1968, Pukhraj Begum and her children respondent Nos. 1 to 5, and Shahabia Begum the appellant as plaintiff Nos. 1 to 6, files a suit for a partition of a house against Sharfuddin on May 18, 1970, a preliminary decree for partition was passed declaring the shares of the parties as follows: Shahabia Begum-2/16th; Sarf-ud-din-7/16th; and the respondents Nos. 1 to 5-7/16th. A local commissioner was appointed to effect partition, who reported that the property was not partible. No objections having been filed. the report was accepted on July 16, 1970, and the property was held to be impartible. On July 17, 1970 an order for final decree for partition was passed holding the property to be impartible and directing that it should be auctioned and the sale proceeds be divided amongst the parties according to their shares as fixed above. Costs were also awarded in favor of the plaintiffs against the defendant. On the same day, a decree sheet on a plain paper in the prescribed been was prepared and singed.
3. The decree holder filed the first execution application on July 22, 1970 for sale of the property. Permission was also sought by Pukhraj Begum to bid at the action which was granted. The auction took placed on September 8, 1970, and the property was sold for Rs.8000/- in favor of Pukhraj Begum. She was permitted to deposit in court the shares of the judgment-debtor and other which she did. On November 20, 1970 objections to the sale were filed, but were dismissed the sale was confirmed and the certificate was duly issued.
4. On December 3, 1970, another application was filed praying for delivery of possession to the auction purchase (Pukhraj Begum). It was a this stage that Shahabia Begum the appellant filed two objection applications, one dated December 8, 1970 under Section 151 of the Code of Civil procedure and the other dated January 15, 1971, under section 47 and certain other provisions of the Code. Sharf-ud-din also filed objection dated December 8, 1970 under Section 47 and 151 to the code of Civil procedure. the main point involved in the objections filed by both was common, viz. that the sale effected in pursuance of the aforesaid final decrees was without jurisdiction as the final decree itself not having been engrossed on the requisite stamp paper was defective and unenforceable. Both objections were, however, dismissed on April 29, 1972 by two separate orders. The appeals were likewise dismissed by the Additional District Judge again by two the aforesaid objectors have filed two separate second appeals as mentioned above.
5. Mr. V. B. Andley, appearing on the behalf of Shahabia Begum in Esa 9 of 1972, whose arguments were adopted by Mr. Gauri Shankar, appearing on behalf of Sharf-ud-din in Esa 10 of the 1972, has raised two contentions:
(1) That the decree was required to be engrossed on a proper stamp paper as an instrument of partition as defined in Section 2(5) of the Stamp Act. As the same was not so engrossed it could not be acted upon the executed. The sale of property on execution thereof and other proceeding in connection there with the accordingly with our jurisdiction and void: and
(2) That the objection could be raised at any a stage and in any proceeding whether before the trial Court or the executing Court or in any other Court.
6. Section 2(5) of the Stamp Act defines instrument of partition as follows:--
' `Instrument of partition' means any instrument whereby co-owner 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 arbitrary directing a partition. The order dated July 17, 1972 passing the final decree of partition in the instant case, directing the sale of the property and instant case direction distribution of the sale proceeding in the proportion fixed as already mentioned, was a final order for effecting partition passed by a Civil Court and was, thereforee, covered by the definition of an instrument of partition. The final decree, thereforee should have been engrossed on a proper non-judicial stamp paper under Article 45 or Schedule I to the Stamp Act.
7. Mr. S. I. Bhatia, the learned counsel for the respondent for the submitted that the property which was joint was the house. Which was ordered to be auctioned without being partitioned. The shares of parties concerned had been declared and the sale proceeds when recovered were to be given over to him proportion to their shares so fixed. There was, accordingly no orders for effecting a partition of the property in suit and the final decree according to Mr. Bhatia could not be said to be an instrument of partition. this contention however is not correct. The decree direction the sale of the house and the division of the sale proceeded and final order effecting a partition there would have been no occasion for ordering sale of property it if was not to be partitioned. The sale of the house and the distribution of the sale proceeds were methods by or the manner in which the partition was to be effected. The sale itself was in there course of partition which was to be completed by the division of the sale proceeds. The order giving such directions was thereforee , an instrument of partition as defined in Section 2(5) of the Stamp Act, as it did effect a partition of the property. The payment to the parties so concerned were to be made our of the sale proceeds of the joint property of the sale proceeds of the joint property, which otherwise might not have been sole at all. (see Pandivi Satvanandam v. Paramkusam Nammayya Air 1938 Mad 397). The final decree thus being an instrument of partition was chargeable with duty as already noticed under Article 5.
8. Under Section 35 of the stamp Act no instrument chargeable with duty can be received in evidence unless to is duly stamped. The execution Court when asked to execute to act upon such Installment. As the same is not properly stamped under the stamp Act, the mandatory bar created by Section 35 prevents the court from acting upon it. Reference to Sec 36 from the stamp Act in this connection has no relevance as the said section does not deal with acting upon. it prevents the question of admission into been evidence, of such an instrument once it has been so admitted may be inadvertently. It does not prevent the questioning of an action which may have been taken on such instrument. (See judgment : AIR1957Cal375 ). In Gopi Mal v. Vidya wait Air 1942 Lah 260 the Full Bench of the Lahore High Court came to the conclusion that final decree which is not a decree passed by a court without having jurisdiction to pass it. The Full Bench observed. 'There is still no lack, of inherent jurisdiction, though there might be an irregularity or illegality in the exercise of jurisdiction.. ......, while there is not a decree that can be acted upon, there is a decree which may be at any moment, by the provision of the stamp, be validated.' The full bench summed up the position thus. 'There is no lack of inherent Jurisdiction in the executing Court, to act a upon the decree, that is to execute it; but there is an illegality or error affecting its jurisdiction in proceeding to act upon the decree which the statutory bar provided by Section 35 forbids it from, doing. Once the proper stamp is supplied, the validity of the decree would date back the date of the decree and, thereforee, the execution application instead of being struck off might proceed as from the date. But this would not validate the proceeding that had taken place before the proper stamp was supplied. Those proceedings would still be with jurisdiction in the sense that the Court was barred by statue from proceeding in the way it did without a proper stamp and, thereforee, the proceeding were without any legal justification'.
9. In the order case, the final decree not having been engrossed on a proper stamp paper, was not a decree that could be acted upon until proper stamp was supplied . The order of the Court, as an executing Court, in directing the sale of the property and distribution of the sale proceeds a was, thereforee, an action of the Court without having jurisdiction to do it.
10. Mr. Bhatia contended that even if the decree considered to be an invalid decree. and the order of sale of property and distribution of the sale proceeds be without jurisdiction, it could be challenged only in a regular suit and not in proceeding for delivery of possession. under O. 21, R. 95 of the Code of Civil Procedure. According to him, the execution proceedings had come to an end on the issue of sale certificate and on the Court ordering the issuance of cheques to the parties concerned for the amounts due to the them in accordance with their shares already fixed, on their filing receipts. The delivery of possession of property purchased in the execution sale, according to him, is not a question relating to the execution, discharge or satisfaction of the decree; and the application for that purpose he said, was not an application in execution proceedings. But, whatever be the nature of the fact proceeding and irrespective of the fact that execution proceedings have or have not come to an end, the appellant cannot be prevented from raising the objection that the order directing sale of property and distribution of sale proceeds was without jurisdiction and, thereforee, a nullity; and that the sale in pursuance of that order is also invalid and that the possession cannot be delivered as a result thereof.
In Kiran Singh v. Chamman Paswan, : 1SCR117 , the Supreme Court observed: 'It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.' In the present case, there being a statutory bar against the Court acting upon the final decree without it being engrossed on a proper stamp, the Court had no jurisdiction to act upon the same and order the sale of the property. This order was, thus, and order passed without jurisdiction and was a nullity and its invalidity in the words of the Supreme Court, could be set up whenever and wherever it was sought to be enforced or relied upon. The respondent Pukhraj Begum, who was asking for possession of the property, was relying upon the said order, in pursuance of which the sale was effected. The same being without jurisdiction and, thereforee, a nullity, can be ignored, as its invalidity can be set up even at this stage and in these proceedings. The learned Additional District Judge, as also the executing Court, thereforee, were not justified in dismissing the objections of the appellants, Shahabia Begum and Sharf-ud-din.
11. Accordingly, the appeals are accepted; and as the two orders dated April 29, 1971 passed by the learned Additional District Judge and also the orders passed by the execution Court, dismissing the objections of Shahabia Begum and of Sharf-ud-din, cannot be sustained, the same are set aside. In the result, the objections filed by Shahabia Begum and Sharf-ud-din are upheld. The entire proceedings, relating to the auction of the property in dispute being without jurisdiction are set aside and the sale certificate and the warrant of possession, which have been issued, are cancelled. The parties, however, shall bear their own costs.
12. Appeals allowed.