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Jogesh Chandra Bandopadhya and anr. Vs. Mohini Mohan Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal125
AppellantJogesh Chandra Bandopadhya and anr.
RespondentMohini Mohan Ghose and ors.
Cases ReferredRafiuddin v. Latif Ahmed
Excerpt:
- .....but was drawn up upon separate sheets of paper to which, as already stated, the non-judicial stamp paper was subsequently annexed. the learned judge has held that there is an express provision in the stamp act, namely, section 13 that the document must be written so that the stamp would appear on the face of it and he has held that the omission to write on the stamped paper itself cannot be condoned and accordingly the decree under execution was invalid and incapable of execution. we are not concerned with the other objections of the judgment-debtors in this appeal. so far as this conclusion of the learned judge is concerned, it had been assailed before us on the strength of the decision of this court in rafiuddin v. latif ahmed (1910) 7 ic 94. in that case, a final decree for.....
Judgment:

1. This is an appeal by the decree-holders from an order passed by the Additional District Judge of Dacca reversing an order of the Subordinate Judge, First Court of that place, in an execution proceeding relating to a decree which is based on an award. The decree was put into execution in Execution Case No. 22 of 1931. An objection was taken on behalf of the judgment-debtors that the decree had not been drawn up on a non-judicial stamped paper as required by law. On 18th January 1932, this objection was upheld by the Subordinate Judge who ordered that the execution case should be dismissed and that the decree-holders would have liberty to have a fresh decree drawn up on a stamped paper according to law and then file a fresh application for execution. On 1st February 1932, a non-judicial stamp of 12 annas having been supplied by the decree-holder the Court which had made the decree, ordered the stamp to be annexed to the decree as originally drawn up and to have it defaced, the names of the parties and the cause title of the case being put down on it. It appears further that a note of this was made on the original decree and the Judge also put down his initials on it with the date 1st February 1932. The decree was thereafter put into execution again. Several objections were taken on behalf of the judgment-debtors to this execution. All of, them have now been overruled by the Additional District Judge with the exception of one which he has allowed and which forms the subject-matter of this appeal. The objection which the Additional District Judge has upheld relates to the defect which, according to the judgment-debtors, there was in the decree on the ground that the decree was not drawn up on the non-judicial stamped paper itself but was drawn up upon separate sheets of paper to which, as already stated, the non-judicial stamp paper was subsequently annexed. The learned Judge has held that there is an express provision in the Stamp Act, namely, Section 13 that the document must be written so that the stamp would appear on the face of it and he has held that the omission to write on the stamped paper itself cannot be condoned and accordingly the decree under execution was invalid and incapable of execution. We are not concerned with the other objections of the judgment-debtors in this appeal. So far as this conclusion of the learned Judge is concerned, it had been assailed before us on the strength of the decision of this Court in Rafiuddin v. Latif Ahmed (1910) 7 IC 94. In that case, a final decree for partition had been drawn up on a court-fee stamp instead of a non-judicial stamp and it was not until the decree had been appealed from and was sought to be executed that the mistake was discovered. This Court held that:

On the plaintiff depositing a non-judicial stamped paper in the appellate Court and on the proper entries being made thereupon, the decree would be validated with retrospective effect from the date when it was drawn up.

2. In giving their direction as to how the defect should be remedied the learned Judges said:

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 Chhayemannessa Bibi v. Basirar Rahman (1910) 37 Cal 399.

3. What has been done in this case is exactly what was required to be done in Rafiuddin v. Latif Ahmed (1910) 7 IC 94, to which we have just referred. We must therefore hold that the decree when it was subsequently put into execution in the second execution case was entirely in order. Our attention has been drawn by Mr. Mukherjee, appearing on behalf of the respondents, the judgment-debtors, to the decisions of this Court in Jotindra Mohan Tagore v. Bejoy Chand Mahtap (1905) 32 Cal 483, in which it was held that:

a decree for partition, to be operative, must be engrossed on stamped paper as required by the Stamp Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated,

4. The proposition laid down in the case last-mentioned cannot possibly be disputed, but it cannot be regarded as militating in any way against the decision in Rafiuddin v. Latif Ahmed (1910) 7 IC 94 to which reference has already been made. Mr. Mukherjee has then contended that if Rafiuddin v. Latif Ahmed (1910) 7 IC 94, is to be acted upon, then it must be held that the decree which was put into execution in this execution case was a decree which was dated as on the date on which it was first signed and on that footing it would be a decree which was more than a year old when the second execution case was started and that consequently notice would be necessary under Order 21, Rule 22, Clause (a) of the Code before the execution proceedings could be started. Now, it is quite true that in the aforesaid case of Rafiuddin v. Latif Ahmed (1910) 7 IC 94, it was laid down that once the requirements which were noted in the order of this Court in that case were complied with, the decree should have retrospective effect as from the date which it originally bore. But if the Judge when affixing the non-judicial stamped paper to the decree as originally drawn up also cared to put down his initials and the date of such affixing of the same date itself, it could not, we think, be said that it was not a decree passed on the latter date. In any event the question as regards the date of the decree would be more material on the question as to whether an appeal could have been preferred from it as a decree of either of the dates. So far as the question of notice under Order 21, Rule 22, Clause (a) of the Code is concerned, we are of opinion that in view of the facts to which we have referred, namely, that in the course of first execution case, the judgment-debtors did appear and took exception to the execution of the decree in their presence and the order was then made to the effect that the decree as it then stood could not be executed but was to be validated by the affixing of a non-judicial stamp the provisions of Clause (2), Rule 22, Order 21 would well warrant the Court from dispensing with the issue of a notice in this particular case. We are accordingly of opinion that the view which the learned Additional District Judge has taken in this matter cannot be supported and that there was no valid objection to the execution.

5. In conclusion, we may point out that Mr. Mukherji has taken an objection, in the nature of a preliminary objection, to the hearing of this appeal. The objection is that one of the respondents, namely, respondent 3 Srimati Nandarani Devi was dead and that no substitution was made of her heirs and that accordingly the appeal had abated in so far as she was concerned. The objection is that by reason of such abatement the appeal is no longer maintainable. We find however that the learned Additional District Judge has in his judgment dealt with the question as to the real character of the decree and has recorded his conclusion to the effect that the subject-matter of this execution is the 15 annas and the 1 anna share of the properties which belong respectively to Sailabala Devi as decree-holder and Mohini Mohan Ghose as judgment-debtor and that the other judgment-debtors are not concerned in this matter. That being the position we are unable to say that the preliminary objection has got any substance. The appeal is allowed, the order of the learned Additional District Judge complained of is set aside and that of the learned Subordinate Judge restored. There will be no order for costs in this appeal.


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