Inturi China Venkatappa vs Inturi Peda Venkatappa and Others

Alfred Henry Lionel Leach, C.J.—On the 14th July, 1937, the appellant obtained a final decree in a suit filed by him in the Court of ''the

Subordinate Judge of Guntur, for partition of the family properties. He now wants to execute that decree. The Subordinate Judge and the District

Judge on first appeal have held that the decree has become time barred. This appeal is from the order passed by the District Judge.

Before a decree for partition can be executed the holder must pay the stamp duty required by Article 45 of the Indian Stamp Act and have the

decree drawn up on non-judicial stamp paper. Rule 12 of the rules relating to partition suits under the CPC and under the Partition Act, 1893,

drawn up by this Court and to be found at page 263 of Vol. I of the Civil Rules of Practice and Circular Orders directs this to be done. Sub-rule

(3) states that on the failure of the party in whose favour the order is made to produce the necessary non-judicial stamp paper within the time fixed

or granted by the Court, the Court shall have the decree drawn up on unstamped paper and deal with it as an instrument within the operation of

Chapter IV of the Indian Stamp Act and send the unstamped'' decree to the Collector for realization of the stamp duty u/s 48 of the Stamp Act

and return of the decree duly stamped to the Court passing the decree with a certificate, by endorsement thereon that the proper stamp duty has

been collected. The final decree in this case did not direct that the stamp paper should be produced within a specified time and apparently no

action was taken under Sub-rule (3) of Rule 12. The amount of stamp required in this case was Rs. 327-7-0.

On the 3rd March, 1938, the appellant applied to the Subordinate Judge for the execution of the decree. He had not produced the stamp paper

and therefore he could only ask the Court to execute the copy of the decree drawn upon unstamped paper. Naturally the Court refused to accept

the petition and on the 9th March, 1938, it was returned to the appellant for the payment of the required stamp duty within a period of seven days.

The appellant did nothing until the 20th September, 1940, when he re-presented the same application again based on an unstamped copy of the

decree. At the same time he asked the Court to excuse the delay in complying with the order passed on the 9th March, 1938. In his application for

an order excusing the delay, he requested a week''s time in which to pay the stamp duty. This application was rejected on the 27th September,

1940. On the 6th November, 1940, the appellant paid into Court the sum of Rs. 327-7-0. The money was received by the Court subject to the

final order that might be passed on the petition for execution. On the 14th November, 1940, the petitioner filed a new application for execution.

The respondents, the defendants in the suit, objected. They contended that the application was out of time. As we have already indicated, the

objection was accepted by both the Subordinate Judge and the District Judge.

For the appellant two arguments have been advanced. The first is that in the case of a partition suit until the final decree has been drawn up on

non-judicial stamp paper of the required value time does not begin to run. The second argument is that in any event the application which was filed

on the 20th September, 1940, asking for excusing of the delay in the re-presentation of the petition for execution amounted to ""a step in aid"" and

therefore limitation did not commence to run until the 27th September, 1940, when that application was dismissed. If the first argument were to be

accepted, it would mean that a person who has obtained a decree in a partition suit can for many years neglect to provide the stamp paper, but

having at last chosen to do so, he can come to Court and ask for execution. This would be an impossible situation, and the argument ignores

important factors. The suit is decided when the judgment is delivered. The decree must be drawn up in accordance with the judgment and bear the

same date. Article 182 of the Limitation Act provides a period of three years for the execution of a decree or order of a Civil Court not provided

by Article 183 or by Section 48 of the Code of Civil Procedure. Therefore a person who has obtained a final decree in a partition suit has three

years in which to execute it unless a fresh period of limitation arises under Clause (5) of Article 182. The question now under discussion was

considered by a Bench of the Calcutta High Court in Kishori Mohan Pal Vs. Provash Chandra Mondal and Others, . It was there held that the

date of the decree for the purpose of Article 182 is the day on which the judgment was pronounced and that limitation runs from that date in a

partition suit, although the party in whose favour the decree has been passed has not furnished the stamp paper for the purpose of the drawing up

of the decree. We consider that the judgment in that case correctly expresses the law. Default or deliberate refusal to produce the stamp paper

within the period allowed for execution by Article 182 cannot operate to overrule an express provision of the Limitation Act.

The second argument advanced on behalf of the appellant is not on any firmer foundation. The application for execution which the appellant filed

on the 3rd March, 1938, was not maintainable and it was not until the 14th November, 1940, which was more than three years after the passing of

the final decree that a proper application was filed In V. E. S. Subramanian Chetty Vs. Kasi Chetty, a Bench of this Court following Chidambaram

v. Murugesam (1938) 3 M.L.J. 156 : ILR (1939) and The Official Receiver of Ramnad Vs. Sivasuriya Narayanaswami Thevar and Others, held

that an execution petition returned for amendment but not re-presented has no legal existence until it is re-presented, and if it is re-presented after

the time limited, it does not acquire the status of a petition calling for an order unless the delay is excused. In that case it was also said that when a

petition is returned for the purpose of the petitioner doing something to enable the Court to proceed further with it, the Court really defers its

consideration until it is brought back with the defects remedied; it is only then that the Court is placed in a position to consider it judicially and

make what can be regarded as a final order on it. The judgment in that case directly negatives the argument that the application of the 20th

September, 1940, for an order excusing the delay should be regarded as a step in aid of execution. It was not until the 14th November, 1940,

after he had paid the amount of the court-fee, that it could be said that the appellant had taken a step in,aid of execution, but it was then too late. It

is no doubt regrettable that the appellant has lost the benefit of the decree which he had obtained, but he has only himself to blame. The law gave

him three years in which to take advantage of that decree and he let the time slip by.

The appeal must be dismissed with costs.