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Kishori Mohan Pal Vs. Provash Chandra Mondal and ors. - Court Judgment

LegalCrystal Citation
Subject Limitation; Civil
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal351,72Ind.Cas.646
AppellantKishori Mohan Pal
RespondentProvash Chandra Mondal and ors.
Cases Referred and Bhajan Behari Shaha v. Girish Ghandra Shaha
Excerpt:
partition decree, execution of - delay in furnishing stamped paper--limitation, operation of-- limitation act (ix of 1908), schedule i, article 182. - .....decree is dated the 25th march, 1914, it is expressed to be 'passed in terms of the commissioner's report, dated the 27th june, 1914, which and the map filed along with it do form parts of the decree.' the 25th march, 1914, is, nevertheless, the correct date of the decree, because that is the day on which the judgment was pronounced (order 20, rule 7, civ. pro. code). the report; of the commissioner appointed to make the partition had already been received, the report was adopted by the judgment subject to certain variations, and, in connection with those variations, certain directions of a ministerial character were given to the commissioner which the commissioner had merely to obey. the order sheet shows that the commissioner submitted a report on the 27thi june, 1914. that report has.....
Judgment:

Richardson, J.

1. This is an appeal by the plaintiff arising out of an application for the execution of the decree made in a suit for partition. The respondents who have appeared are four of the defendants in the suit. They are described in the application as judgment-creditors while the plaintiff and the remaining defendants are described as judgment-debtors. The decree bears date the 25th March, 1914. The application was made on the 21st July, 1920, more than six years later. The only question is whether execution is barred by limitation. No previous application for execution having been made, the period of limitation provided by Article 182 of the Limitation Act is three years from the date of the decree. The words are plain and unambiguous and prima facie this application is out of time.

2. Under the Stamp Act of 1899 a decree for partition is chargeable with duty to the amount prescribed by Article 45 of Schedule I of the Act, and the expense of providing the proper stamp is to be borne by the parties to the decree in such proportions as the Court directs. The result is, that; a decree for partition is not formally drawn up until paper bearing the proper stamp is supplied to the Court. The decree is then engrossed on the stamp paper and signed by the Judge.

3. In the present case the decree was signed by the Judge on the 2nd January, 1920, no stamped paper having been furnished till on or shortly before that date.

4. In the judgment appealed from, the learned Subordinate Judge has held that in the case of a decree for partition limitation runs from the date on which the Court receives the requisite stamped paper. He has given no reason or authority for this view other than the decision of this Court in the case of Jotindra Mohan Tagore v. Bejoy Chandar Mahatap (1906) 32 Cal. 483.

5. It is not necessary to say whether one agrees or does not agree with that decision. The question discussed is not the question which arises in the present case. The learned Judges were not there construing Article 182 of the Limitation Act.

6. In this Court the learned Vakil for the respondents has said all that could be said for his clients. He has in particular called our attention to the fact that, although the decree is dated the 25th March, 1914, it is expressed to be 'passed in terms of the Commissioner's report, dated the 27th June, 1914, which and the map filed along with it do form parts of the decree.' The 25th March, 1914, is, nevertheless, the correct date of the decree, because that is the day on which the judgment was pronounced (Order 20, Rule 7, Civ. Pro. Code). The report; of the Commissioner appointed to make the partition had already been received, the report was adopted by the judgment subject to certain variations, and, in connection with those variations, certain directions of a ministerial character were given to the Commissioner which the Commissioner had merely to obey. The order sheet shows that the Commissioner submitted a report on the 27thi June, 1914. That report has not been placed before us. But I have no doubt that it did no more than state that the Commissioner had done what he was directed to do by the judgment of the 25ths March, 1914. That judgment was the final judgment in the suit and it was so regarded by the Subordinate Judge who delivered it. The decree is in accordance therewith. The directions in the judgment were sufficient to indicate how the decree' should be framed, and there was no need of any further judgment.

7. 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 of the execution.

8. 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, and if authority be needed, reference may be made to Golam Gaffar Mandal v. Goljan Bibi (1898) 25 Cal. 109 and Bhajan Behari Shaha v. Girish Ghandra Shaha (1913) 17 C.W.N. 17 C.W.N. 959.

9. I may add that much time and labour would be saved if the Court would resist such attempts as the present to go behind the plain words of a positive enactment.

10. In my opinion the appeal succeeds and. the application for execution must be dismissed.

11. In the circumstances, we make no order as to the costs of this Court or of the Court below.

Sanderson, C.J.

12. I agree.


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