S.N. Deedwania, J.
1. This civil execution appeal is against the judgment and order dated February 1, 1975 of learned Additional District Judge, Sirohi, by Ummedmal, judgment-debtor.
2. Briefly stated the relevant facts are these. The respondents-decree-holders filed a suit for partition of two shops situated at Sumarpur but it was dismissed by the trial Court. The respondents-decree-holders preferred first appeal, which was also dismissed. However, the second appeal filed on their behalf in this Court was accepted and the suit was decreed. Letters Patent Appeal filed by Ummedmal was dismissed. The respondents-decree-holders filed the execution application on 28-1-1972 in the Court of Addition District Judge, Sirohi. Notices under Order XXI, Rule 22, C. P. C. were issued. The appellant put appearance on 8-4-1972 and was also present on the next date i. e. 9-5-1972. On 8-7-1972, no instructions were pleaded by the counsel of the judgment-debtor. The Court vide order dated July 7, 1973 held the decree to be capable of execution. During the execution proceedings, a Commissioner was appointed and one shop was allotted to the decree-holders. They also wanted arrears of rent and further mesne profits. The Court determined the arrears of rent and mesne profits and attached the shop, which fell to the share of the judgment-debtor. Notice under Order XXI, Rule 66, C. P. C. was issued. The judgment-debtor appeared and raised the following objections:--
1. The decree was inexecutable being not in accordance with Order XX, Rule 18, C. P. C.
2. A proper notice under Order XXI, Rule 22,C. P. C. was not served upon and, therefore, in the eye of law, no notice under Order XXI, Rule 22, C. P. C. was served upon him.
3. The Commissioner did not issue any notice to the judgment-debtor and, therefore, the Court was in error in proceeding on the basis of that report.
Though, the following specific objections were not taken before the lower Court or in the memo of appeal. But, they were allowed to be raised before me with my permission,--
(i) As partition decree was not drawn on a stamp paper, it could not be acted upon and all the proceedings taken in execution of such a decree were nullity.
(ii) The High Court, in fact did not pass the decree for mesne profits or arrears of rent and, therefore, the executing Court was in error in directing its recovery in excess of the decree.
3. 1 have heard learned counsel for the parties and perused the record of the case carefully.
4. As to the execntability of the decree this point was decided after notice under Order XXI, Rule 22, C. P. C. to the judgment-debtor, though it was done so after the judgment-debtor became ex parte. Yet, the decision is binding on him by the principles of constructive res judicata. The trial Court has also reconsidered this question, so far it relates to the executability of the decree with regard to partition in the presence of the appellant. Otherwise also it is well settled that a final decree can be passed in a partition suit without making any preliminary decree and its terms and conditions of the decree can be ascertained by making a reference to the pleadings and the judgment. If the pleadings and the judgment, in the case are considered, it is evident that the decree-holders were claiming half a share in the two shops. Therefore, it could not be said that the decree was vague in this regard.
5. I am not impressed with the argument advanced on behalf of the appellant that for want of proper notice under Order XXI, Rule 22, C. P. C., it should be held that no notice was delivered or served upon the judgment-debtor. The argument is untenable. The object of the notice under Order XXI, Rule 22, C. P. C. is to give a fair notice of the execution to the judgment-debtor. The judgment-debtor did appear in the execution proceedings and, thereafter chose to remain absent. I am, therefore, of the opinion that because of the appearance of the judgment-debtor before the executing Court, the question of service or service of a defective notice under Order XXI, Rule 22, C. P. C. lost its importance because the judgment-debtor had a fair notice of the execution.
6. Learned counsel for the appellant could not point out any provision of law under which a notice has to be given on each stage of execution proceedings to the judgment-debtor after he chose not to participate in them. The question of serving him with a notice of the report of the Commissioner, therefore, did not arise.
7. It is well settled that a decree not drawn on a proper stamp paper cannot be acted upon. This principle was not disputed before me. However, it is argued by learned counsel for the appellant that such a decree and proceedings taken thereunder cannot become valid with retrospective effect on the production of proper non-judicial stamp.
8. On the other hand, learned counsel for the respondents argued that such a decree is not a waste paper and can be validated with retrospective effect. In any case, the appellant cannot be permitted to take this plea in view of the principles of constructive res judicata. In my opinion, the principles of constructive res judicata are not applicable in such a case because the mandate of law under Section 35 of the Stamp Act is that no court shall act upon a partition decree, which is not drawn on a proper stamp paper. The submission that the decree cannot be validated with retrospective effect on the production finds support from the case of Satyanandam v. Paramkusam Nammayya (AIR 1938 Mad 307) wherein it was thus observed:
'Where a decree in a suit for partition of joint family property directs payment of specific sums to individual members of the joint family, and the payments are to be made out of the joint family funds or out of the proceeds of the sale of the joint family, the effect of the provisions is that the properties which were joint properties are divided among the members of the joint family and the decree amounts to a final order of a civil Court for effecting a partition and falls strictly within the terms of Section 2 (15) Stamp Act, and cannot be acted upon i. e. executed by any Civil Court unless it is engrossed on a proper non-judicial stamp paper. The fact that the decree does not finally divide the whole of the joint family property is immaterial, for, a decree may be partly preliminary and partly final. So also, the mere fact that the decreehas been acted upon and executed for over two years does not preclude a subsequent objection to its executability on the ground that it has not been properly stamped. The case is governed by Section 35 and not by Section 36, which deals only with the admission of instrument in evidence.
The decree and the proceedings taken thereunder cannot become validated with retrospective effect on the production of the proper non-judicial stamp. Section 37, Stamp Act, does not apply to the case. A final decree for partition has no existence as a decree until it is engrossed on proper non-judicial stamp paper.
Where a decree in a partition suit which is in substance a final order effecting partition is not engrossed on a proper non-judicial stamp, there is no valid decree in existence and the Court has no jurisdiction to sell any property in the execution proceedings. If such a sale takes place, the whole of the sale proceedings are a mere nullity and the sale passes no title to the auction-purchaser.'
However, I am not inclined to take the view propounded in the said authority. This view has not been accepted in the following authorities, wherein, the following observations to the contrary were made : Gopi Mal v. Vidya Wanti (AIR 1942 Lah 260) (FB)-
'Where the Court has drawn up a partition decree without the proper stamp whether after a considered decision or whether only by inadvertence, there is no lack of inherent jurisdiction, though there might be an irregularity or illegality in the exercise of jurisdiction and therefore it cannot be said that there is no decree in existence at all. There is a decree but not a decree that can be acted upon until proper stamp is supplied, but the decree can be validated by the addition of the proper stamp and, therefore it cannot be said that there is no decree at all in the sense that that decree is merely a piece of waste paper which cannot be validated by the addition of the stamp unless the presiding officer re-signs the decree after it is stamped.
Where a partition decree is drawn up without proper stamp and the executing Court without objection proceeds to execution, there is no lack of inherent jurisdiction in the executing Court, to act upon the decree, that is to execute it but there is an illegality or error affecting its jurisdiction in proceeding to act upon a 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 to the date of the decree and therefore the execution application instead of being struck off might proceed as from that date. But this would not validate the proceedings that had taken place before the proper stamp was supplied. Those proceedings would still be without jurisdiction in the sense that the Court was barred by' statute from proceeding in the way it did without a proper stamp and therefore the proceedings were without any legal jurisdiction.' Ganesh Prasad v. Mt. Makhna (AIR 1948 All 375) - 'I am of opinion that when by the supply of the requisite stamp the validity of the decree dates back to the date of the decree, the validity of the execution proceedings under that decree taken prior to the supply of the requisite stamp can hardly be questioned. The payment of the stamp duty in the present case validated not only the decree, but also the proceedings taken thereunder. This view hardly admits of any argument.'
Rajaram Parashram v. Madhav Murar (AIR 1953 Madh Bha 47) -
'The same principle was relied upon in Jogesh Chandra v. Mohini Mohan, 38 Cal WN 1118: AIR 1935 Cal 125. Either on principle or on the weight of authority, I cannot see my way to follow--'Satyanandam v. Paramkusam Nammayya', AIR 1938 Mad 307, and with greatest respect I dissent from the proposition enunciated in it.'
I am, therefore, of the opinion that the decree, which is not drawn on a stamp paper is not merely a waste paper and it can certainly be validated with retrospective effect. I need not advance my own reasons as I am in respectful agreement with the reasons and the views expressed in the above three authorities, I hold that after the supply of the proper stamp, the decree is validated with retrospective effect from the date of the decree.
9. In Gopimal's case (AIR 1942 Lah 260) (FB) (supra), no doubt it is held that the proceedings before the supply of proper stamp paper would still be without jurisdiction because the Court could not act upon such a decree under Section 35 of the Stamp Act. The same view is expressed in Satyanandam's case (supra). In Rajaram Parashram's case (supra) this question was not before the Court for consideration. However, this question directly arose in Ganesh Prasad's case (supra) and the view taken is that the supply of the stamp validates not only the decree but also the proceedings taken thereunder. The reason appears to be that in such cases, the Court does not lack inherent jurisdiction to execute the decree but the decree cannot be executed because of the bar contained in Section 35 of the Stamp Act. Moreover, if the decree is validated by the supply of requisite proper stamp with retrospective effect from the date of the decree then it does not stand to reason that the subsequent proceedings ate not so validated. Obviously bar of acting upon such a decree is also taken away with retrospectively. Two different yardsticks cannot be applied; one for curing the defect of a decree which is not drawn on the stamp paper with retrospective effect from the date of decree by the supply of the stamp paper and the other with regard to the proceedings taken upon such a decree. In Ganesh Prasad's case (supra), the view taken in the case of Gopimal's case (supra) was not subscribed to. I am, therefore, of the opinion that on the supply of the requisite stamp would validate not only the decree but the proceedings taken thereunder retrospectively. In this view, the order relating to the actual physical partition by the Court in the execution would not suffer any infirmity after the supply of the stamp papers.
10. This takes me to the question of the executability of the decree as regards the mesne profits and the arrears of rent. Learned counsel for the respondents argued that the appellant could not take this plea that the execution cannot be directed in excess of the decree also on the principles of constructive res judicata. Various authorities were brought to my notice to show that the principles of constructive res judicata is also applicable to execution proceedings. I need not refer to those authorities because this is well settled. An objection of this nature that the execution is being sought in excess of the decree, in my opinion, can be taken at any stage as it relates to lack of jurisdiction to execute the decree. In this regard, I may refer to the following observations made in the case of Raja Babu Kothari v. Sayed Mohammad (AIR 1961 Raj 227), wherein it was thus held (at p. 230) :
'Though the principles of res judicata and of constructive res judicata are applicable to execution proceedings the mere fact that the judgment-debtor did not object in the previous execution proceedings that the amount for which the execution was takenout was in excess of the decree, will not debar him from raising that question in subsequent execution proceedings.' The task before me is, therefore, to find out whether any arrears of rent and mesne profits were granted under the decree,
11. It is alleged in the plaint that defendant No. 3 was the tenant in shop No. 3 and he has sublet the shop to defendant No. 4. Defendant No. 5 was the tenant in another shop. It is further alleged that defendants Nos. 1 and 2 were making recoveries of rent of these two shops and had made recoveries up to S. Y. 2011. It is also alleged in para 6 of the plaint that the rent from S. Y. 2011 was due from defendants Nos. 3, 4 and 5. Toe plaintiff and defendants Nos. 1 and 2 are entitled to this rent. The reliefs sought in the plaint in this respect were as under:
From perusal of relief Clause (b) and averments in the plaint, it is evident that the plaintiffs wanted a decree for arrears of rent in favour of himself and defendants Nos. 1 and 2 against defendants Nos. 3, 4 and 5. No relief was sought against defendants Nos. 1 and 2 for mesne profits presumably because the decree for rent was sought against defendants Nos. 3, 4 and 5, From perusal of the High Court's judgment, it is also evident that the question of arrears of rent or the mesne profits was not raised or considered. In these facts, it is not possible to read in the judgment of the High Court that a decree for rent and mesne profits was passed in favour of the respondents-decree-holders. It may also be mentioned that suit of the respondents was dismissed in toto by the trial Court and even before the first appellate Court, the claim for mesne profits and arrears of rent against defendants Nos. 1 land 2 was not raised. I am, therefore, of opinion that the High Court passed the decree for partition of the two shops only and by implication, the other reliefs were denied. The execution application filed by the decree-holders for arrears of rent and mesne profits was dearly in excess of the decree passed by tins Court and the trial Court could not have granted any relief in this respect.
12. In the result, the appeal is party allowed and the order directing the recovery of arrears of rent and mesne profits against the appellant is set aside. However, the partition of the two shops effected by the trial Court being valid is upheld. Eachparly shall bear his own costs of this first appeal.