Kapoor Singh vs Anoop Singh and Others

Swatanter Kumar, J.—This revision is directed against the order passed by the learned Additional Civil Judge (Senior Division), Nawan Shahar dated 31.3.1997 vide which the application filed by the judgment debtor praying that a warrant of possession be not issued in execution petition was dismissed.

The facts of this case are hardly at dispute. Plaintiff Anoop Singh had filed a suit for separate possession of half share of the property described in the plaint. He claimed to be co-owner of the property to the extent of the aforestated share. Plaintiff and the defendants are the brothers. The defendants while contesting the suit admitted the relationship but stated that property is joint and the share of the plaintiff is only to the extent of 1/6th. The learned trial Court vide judgment and decree dated 31.10.1985 passed a decree for possession by way of partition. Appeal against this judgment and decree was partly accepted by the learned Additional District Judge, Jalandhar, who vide judgment and decree passed in appeal dated 1.4.1989 held as under:-

"In view of the findings on material issue No. l having been set aside the judgment and decree under appeal are hereby set aside. The appeal is accepted. A preliminary decree for possession by way of partition by metes and bounds of l/8th share of the plaintiff/appellant in the suit properties is hereby passed. The suit of the plaintiff is ordered to be decreed with costs throughout."

Execution was filed by the plaintiff for possession of l/8th share. During the pendency of the execution petition and when warrant of possession was to be issued, the present application was filed by the Judgment Debtor, which , as already noticed, was dismissed by the learned executing Court.

The learned Counsel for the petitioner relying upon the case of Cantonment Board, Secunderabad Vs. G. Venketram Reddy and Others, has argued that the decree was unexecutable because it was not adequately stamped. The conditions precedent to a financial decree were not satisfied in the present case, as such warrant of possession cannot be issued.

From the above narrated concluding paragraph of the judgment of the learned First Appellate Court it is clear that a preliminary decree for possession by metes and bounds to the extent of 1/8th share was passed by the Court in favour of the plaintiff. The said decree has become final and thereafter Local Commissioner was appointed by the Court and a final decree was passed after submission of the report of the Local Commissioner on 26.2.1994/12.5.1994. It has been specifically noticed by the learned executing Court that the copy of the final decree placed on record clearly shows that it has been stamped as per the provisions of the Indian Stamp Act.

Thus, I am unable to see any reason as to how the judgment of the Hon''ble Supreme Court in the aforestated case could be of any help to the present petitioner. The learned Counsel further contended that the value of the property has been assessed by the plaintiff himself at Rs. 28,000/- and 1/8th share thereof would be the proper share on which the requisite stamp duty should be paid. There is nothing on record before this Court to come to this conclusion. Vide the impugned order the learned executing Court has even summoned the original file from the record room to see the decree.

In these circumstances I am unable to see any error of jurisdiction in the order passed by the learned executing Court. If at all the learned executing Court upon seeing the original file comes to the conclusion that if there is deficiency in payment of stamp duty, obviously the learned executing Court would direct payment of such stamp duty within the prescribed period but this per se cannot be ground for holding that the decree is not executable. It is clear from the record that stamp duty has been paid and a decree has been drawn on a stamp paper.

For the reasons afore-stated I find no merit in this petition. The same is dismissed, however, leaving the parties to bear their own costs.