Surjit Kaur Alias Jeeto vs Smt. Gurbachan kaur and Others

J.V. Gupta, J.—This revision petition has been filed by the decree-holder against the order of the executing Court dated December 2, 1985, whereby the objections filed on behalf of the vendees from the judgment-debtors were accepted and the execution application was dismissed.

Surjit Kaur filed the suit for possession by way of partition in which a preliminary decree was passed in her favour to the extent of one-fourth share of the whole plot on May 29, 1967. Subsequently, a local commissioner was appointed for actual partition who made the report dated March 8, 1971. Thus, the order for passing the final decree was made on April 19,1971. It is strange and surprising that in spite of the said order, no decree-sheet was prepared up-till July 25, 1983. Meanwhile, on February 4, 1982, the decree-holder Surjit Kaur filed the application for execution which was dismissed as premature on August 9, 1983. on the ground that since no decree-sheet had been prepared, the decree as such could not be executed. Against the said order of the executing Court, Civil Revision Petition No. 229 of 1983, was filed in this Court which was dismissed at the motion hearing on September 23, 1983, with the following observation:

The decree is now stated to have been drawn up on 25th July, 1983. If that is so, nothing stops the Petitioner to file a fresh execution application. Such a course was even kept open by the learned Sub Judge 1st Class, Ajnala in the concluding para of his order now impugned. No cause for interference has been made out. Dismissed.

In this situation, the decree-holder moved another execution application on August 25, 1983, seeking execution of the final decree which was prepared on July 25, 1983. Therein, Jarnail Singh and his wife Manjit Kaur filed objections. They claimed themselves to be the vendees from the judgment-debtor. It was alleged by them that since the earlier application for execution had already been dismissed, the present one was not maintainable. Moreover, the execution application should have been filed within 12 years from the date of the order dated April 19, 1971. It having been filed on August 25, 1983, was barred by time. An objection was also raised that the decree, holder was to pay a sura of Rs. 3,000/- to the judgment-debtor as compensation since it was a condition precedent to the execution of the decree. In reply to the said objections filed on behalf of the decree-holder, it was pleaded that Shrimati Gurbachan Kaur and Harnam Kaur had no share which is said to have been sold to the objector. Moreover, the plea regarding the alleged non-payment of Rs. 3,000/- to Kehar Singh was not available to the objectors it was a matter between the decree-holder and the judgment-debtors. It was also maintained that the decree had not become time-barred. The executing Court found that the execution application was barred by time, as the limitation was to start from the date of the final decree, i. e , April 19, 1971 and not from the date on which the decree was drawn, i. e., July 25, 1983. Moreover, according to the executing Court, the decree had not been drawn on the proper stamp paper and, therefore, it could not be treated as a legal decree-sheet which could be enforced. It was further found that since the payment of Rs, 3,000/- was a condition precedent to the execution of the decree and the same having not been satisfied the decree as such could not be executed. According to the executing Court, the time will begin to run from the date of final decree, i. e , April 19, 1971 and the mere fact that the decree-sheet was dated July 25, 1983, was of no consequence. Dissatisfied with the same, the decree-holder has filed this revision petition in this Court.

The learned Counsel for the Petitioner submitted that there was no direction in the order dated April 19, i97l, for tiling any stamp duty and. therefore, the question of conplying With the same did not arise. Moreover, argued the learned Counsel, the stamp duty, if any, could be paid even in the executing Court and on payment, the decree will stand validated from the date it was passed. In support of the contention, the learned Counsel relied upon AIR 1942 260 (Lahore) . It was also maintained that even the executing Court could receive the requisite stamps, if any, and the decree executed. In support of this contention, the learned Counsel relied upon Ganesh Prasad Vs. Mt. Makhna and Another, ., On the other hand, the learned Counsel for the objectors relied on Amar Nath v. Mul Raj (1975) 77 P. L. R. 540 (F.B.)., and Praja Singh and Others Vs. Gurdip Singh and Others, ., on which the reliance was also placed by the executing Court. It was further contended that the payment of Rs. 3,000/- was a condition precedent to the execution of the decree and that the execution application was barred by time as limitation was to run from April 19, 1971, when the final decree was passed.

After hearing the learned Counsel for the parties, I find force in the contentions raised on behalf of the decree-holder-Petitioner.

Admittedly, there was no direction in the order dated April 19, 1971, when the order for final decree was passed. That being so, no fault could be found with the decree-holder in not complying with the same. Rather, it is surprising that no decree-sheet was preparedup.till July 25, 1983. The decree-holder had filed the execution application within 12 years, on February 4, 1952, but the same was dismissed as premature by the executing Court. It is, therefore, evident that the decree-holder could not be blamed because it was for the Court to prepare the decree-sheet, which was ultimately done on July 25. 1983. Thus, the execution application filed on August 25, 1983, was within limitation and could not be held to be barred by time on the facts and circumstances of this case. As regards the payment of Rs. 3,000/-, according to the report of the local commissioner, the same was to be paid at the time of the delivery of the possession by the judgment-debtor. That stage has not come as yet. Therefore, the execution application could not be dismissed on that ground.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside. The case is sent back to the executing Court for proceeding with the execution application in accordance with law. The objections filed on behalf of the vendees stand dismissed. The parties have been directed to appear before the executing Court on February 20, 1987. The record of the case be sent back forthwith. It will be open to the executing Court to direct the decree-holder to pay the requisite stamp duty, if any. Since the trial Court passed the preliminary dacree in the year 1967, i. e, about 20 years back, it will be in the fitness of things that executing Court disposes of the execution application expeditiously.