PADMAWATI BHALLA Vs. MASTER SAHIL AND ORS

JUDGEMENT

(1.) This appeal has been filed being aggrieved by the order dated 22.12.2016 whereby the learned single Judge refused to clarify/modify the order dated 23.05.2016 passed by another learned single Judge in IA No.6536/2016 which was an application under Order 23, Rule 3 CPC.

(2.) The appellant is aggrieved by the fact that the Registry is insisting that the decree followed by the order dated 23.05.2016 ought to be stamped as an instrument of partition under Sec. 2 (15) of The Indian Stamp Act, 1899 read with Schedule I of Art. 45 thereof.

(3.) The case of the appellant as also of the respondents, who are all aggrieved, is that the decree which is to be drawn up pursuant to the order dated 205.2015 should not be construed as a decree of partition but as a declaratory decree. Their case is that although in the suit for the partition a preliminary decree had been passed, subsequently, the parties entered into an oral settlement and also divided the properties by metes and bounds without any written instrument. It is thereafter that the Memorandum of Understanding, for the reason of recording for posterity the terms of the settlement already arrived at, was entered into. The Memorandum of Understanding was entered into on 15.05.2016 and the oral settlement was made the basis for the application under Order 23, Rule 3 CPC.