1. This is an application of a somewhat novel character presented by one of the respondents in an appeal from an original decree. The petitioner was the plaintiff in a suit for partition of joint properties. The preliminary decree was made in due course, and a Commissioner was appointed to divide the properties by metes and bounds. After his report had been submitted and the order for final decree made, the Court below directed the plaintiff to file a non-judicial stamp of the value of Rs. 100 in order that the decree might be drawn up thereon in accordance with Article 45 of the first schedule to the Indian Stamp Act of 1899. By some mistake, the plaintiff filed a Court-fee stamp of that value. The error was not discovered by the officers of the Court and the decree was engrossed on the stamp paper filed. The error also escaped the attention of the learned Judge as also of the pleaders for the different parties, who signed the decree to indicate that it had been correctly drawn up. Subsequently, one of the defendants filed an appeal in this Court against the final decree so drawn up. The appeal has been registered and steps have been taken by him for preparation of the printed paper book. The plaintiff and the other defendants have also entered appearance in the appeal, and we are informed that memoranda of cross-objections have been filed on behalf of some of them. Meanwhile, the plaintiff applied for execution of the decree in the Court below, whereupon objection was taken by the defendant-appellant that the decree could not be executed, inasmuch as it had been drawn up, not upon a non-judicial stamp paper as required by the Indian Stamp Act and as directed by the Court, but upon a Court-fee stamp. His contention, in substance, was that there was no valid decree in existence, capable of execution and this objection was allowed to prevail. The plaintiff has now presented this application, and on his behalf two alternative suggestions have been put forward; namely, first, that, if the contention of the defendant-appellant, which has prevailed in the Court below, be correct, the appeal is incompetent, and ought to be taken off the records of this Court, inasmuch as it has been presented against a decree which in the eye of the law has no existence; and secondly, that, if the course suggested be not adopted, the petitioner may be permitted to file in this Court a non-judicial stamp of the value of Rs. 100 and thus to validate the decree. It has further been argued that, if this second course is adopted, an order may be made upon the Revenue authorities for refund of the sum which was paid for the purchase of the Court-fee stamp upon which the decree has been drawn up. We have heard the learned Vakils at length on behalf of all the parties concerned, and the learned Government Pleader has also been heard as amicus curi upon the last point raised by the petitioner.
2. In so far as the first alternative suggested by the petitioner is concerned, it is, no doubt, open to the Court to adopt it. If the defendant-appellant in this Court maintains, as he did maintain in the Court below, that the decree is incapable of execution because it has no existence in the eye of the law, his appeal must be treated as incompetent. But if effect were given to this view, the result would involve the parties in considerable expense, and, in our opinion, needless delay. If the appeal is taken off the files, the Court-fees paid upon the memorandum will be wasted; a similar remark will apply to the cross-objections, which in this view must also fall through; and the defendant will be driven to prefer another appeal to this Court after the plaintiff has obtained a proper decree drawn up by the Court below upon non-judicial stamp paper. In fact, if this course is pursued, the steps which have hitherto been taken in the matter of the appeal will prove infructuous, and will have to be repeated at no distant date. The contingency which has happened was not contemplated by the framers of the Civil Procedure Code or of the Indian Stamp Act, and although our attention has been drawn to various sections of the latter Act amongst which we may mention Sections 29, 33, 35, 37 and 40, they are of no assistance to either party, In our opinion, this is a matter in which we are not constrained by any statutory provisions to adopt the first alternative put forward by the petitioner. This is obviously a fit case for the exercise of the inherent powers of the Court which have been saved by Section 151 of the Civil Procedure Code of 1908. The second alternative suggested by the petitioner should, therefore, be adopted; it is, in fact, what might have been done by the Collector under Section 41, if the mistake had been discovered in time. The course, we propose to pursue, will do substantial justice and avoid delay and multiplicity of proceedings. We, therefore, direct the plaintiff-petitioner to file a non-judicial stamp of the value of Rs. 100. This will be defaced, and the cause, title and names of the parties in the Court below will be written on it; it will then be attached to the decree as already drawn up. This, in our opinion, will be sufficient to validate the decree with retrospective effect from the date when it was drawn up on the principle explained by this Court in the case of Chhayunnessa Bibi v. Kazi Basirar Rahman 37 C. 399 : 11 C.L.J. 285 : 5 Ind. Cas. 532, and the result, of course, will be to validate the appeal as well. After the orders of this Court have been carried out, the plaintiff will beat liberty to apply for execution of the decree as a valid decree.
3. The only other point which requires consideration, is the prayer of the plaintiff-petitioner for an order upon the Revenue authorities for refund of Rs. 100 paid for the purchase of the Court-fee stamp which has now proved useless. Reference has been made to Section 52 of the Indian Stamp Act of 1899, which provides that when any person has inadvertently used for an instrument chargeable with duty a stamp of a description other than that prescribed for such instrument by the rules made under this Act, the Collector may cancel and allow as spoiled the stamp so misused. It is clear, however, that this Section is of no assistance to the petitioner, because the expression stamp of a description other than that prescribed for such instrument evidently refers to non-judicial stamp, either adhesive or impressed, as mentioned in the Act. Section 52, in our opinion, does not cover a case in which a Court-fee stamp has been erroneously used where a non-judicial stamp ought to have been used under the provisions of the Indian Stamp Act. The view, we take, is supported by the decision of the Full Bench of the Allahabad High Court in the case of a Reference under Section 57 of Act II of 1899 23 A. 213 : A.W.N. (1901). That case arose upon the construction of Section 37 of the Indian Stamp Act, 1899, but the same principle is, in our opinion, applicable to the construction of Section 52. The petitioner, therefore, is not entitled to the benefit of the consequential relief contemplated by Section 53. Nor has cur attention been drawn to any provisions of the Indian Court Fees Act of 1870 which entitles the petitioner to any relief as a matter of right in the events which have happened. We are, therefore, unable to make any declaration for his benefit as prayed. It does not follow, however, that because there is no statutory provision in either the Court Fees or the Stamp Act, that the Revenue Authorities may not afford the petitioner relief, if a proper application is made for their consideration. Such relief, however, may be granted only as a matter of indulgence, and cannot be claimed by the petitioner as a matter of right.
4. The result, therefore, is that this application is allowed in part, the petitioner is permitted to deposit a non-judicial stamp of the value of Rs. 100, and thus to have the decree validated, but his application, in so far as it prays for an order upon the Collector to certify that the decree is properly stamped, or to refund the amount paid for the purchase of the Court-fee stamp, is refused. There will be no order as to costs.