M MANOHAR KAMMATH Vs. M RAM MOHAN KAMMATH

JUDGEMENT

(1.) This case comes up before us on a reference made by Krishnamoorthy, J. The reference has occasioned since the learned Judge felt that the view expressed in Gopalan v. Chellappan, 1988 (2) KLT 433, conflicts with the view taken in the decision Kochunarayanan v. Aravindakshan, 1974 KLT 301. Obviously for an authoritative pronouncement on the question and to avoid the conflict, our noble and learned brother, Krishnamoorthy, thought an excathedra decision by a Division Bench of this Court on the question is necessary.

(2.) The question raised is under the Kerala Stamp Act (Act 17 of 1959), hereinafter referred to as the Act. The short facts are these :

(3.) In execution of a decree, the judgment-debtor produced a document. He produced it with a petition to receive the same. The decree-holder contended that the document cannot be received as it is not properly stamped. The decree directed the judgment debtor to put the decree-holder in possession of the suit property. The appellate Court granted time till 1-12-1988 for the judgment-debtor to vacate the premises. The execution petition was filed for delivery of the possession of the suit property. The judgment-debtor put forward a defence that subsequent to the decree and after surrender of possession of the property, a new agreement of lease was executed by the judgment-debtor and that he is holding possession of the property by virtue of that document of lease. He wanted the production of that document, and for that purpose, he filed the petition. This document was found to be not properly stamped.