BRENDA BARBARA Vs. ADRIAN MIRANDA

JUDGEMENT

(1.) The question came up for consideration before us by way of I.A.No.1/2023 is with respect to the permissibility of this Court (the first appellate court) to engross a final decree for partition on required stamp paper or whether this court can exercise jurisdiction for that purpose.

(2.) The procedure to be adopted for engrossing a decree on stamp paper is dealt under the provisions of Civil Rules of Practice, Kerala. The form of decree that can be drawn is made mentioned under Rule 182 in Chapter V of the said Rules. But in the case of final decree for partition, in addition to the requirement under Rule 182, the mandate under Sec. 235(1) and (2) has to be complied with in so far as it is applicable either to movable or immovable properties. The plan prepared at the final decree stage and accepted by the court shall be appended to the final decree, besides the schedule of properties. The question of engrossing the final decree would arise only after attaining finality and conclusiveness to a decree drawn either by the trial court or by the first appellate court or by the second appellate court as the case may be. The expression "decree" is defined under Sec. 2(2) of the Code of Civil Procedure as follows:-

(3.) Going by the first limb of the said definition, a decree or a final decree would stand for the "formal expression of an adjudication which conclusively determines the right of parties in any of the controversy in the suit". Necessarily, a final decree in a partition suit should be understood as the formal expression of adjudication by the court determining the rights of parties and disposing the suit completely by such adjudication. The definition of 'judgment' under Sec. 2(9) of the Code of Civil Procedure means the statement given by the Judge on the grounds of a decree. A conjoint reading of these two definitions would show that the decree in fact stands for the operative portion of the judgment, which determines the right of parties. There may not be any change in the legal position regarding what would constitute a decree as defined under Sec. 2(2) of C.P.C. either at the trial stage or at the first appellate stage or even at the second appellate stage. By virtue of the principle of merger, the decree passed by the trial court will stand merged in the decree passed by the first appellate court or the second appellate court as the case may be and the decree can be executed by the execution court and not by the first appellate court or the second appellate court by virtue of provisions contained under Order XXI C.P.C irrespective of whether it was passed by the first appellate court or the second appellate court. The very same principle is applicable to a decree of partition of immovable property when it requires a documentation showing title, interest or the right thereof as mandated under the provisions of the Registration Act. It is for that purpose, the final decree for partition has to be engrossed on required stamp paper, as if it were a partition effected by the parties inter se. This being the legal position, once the decree has attained finality, it will go back to the trial court so as to comply with the requirement for engrossing the decree on stamp paper so as to make it a document of title, interest or right or severance thereof as the case may be. The subsequent provision, Rule 237 of Civil Rules of Practice says that the decree should be engrossed on non-judicial stamp paper of requisite value with a supplement that it shall be retained by the court and shall form part of the record. The expression 'by the court' made mentioned therein stands for the trial court. Sub-Rule (2) and (3) says that a copy of final decree in a partition suit shall be sent to the Sub-Registrar within whose jurisdiction, the immovable property situate and if it is within the jurisdiction of more than one, shall send copies to all such Sub-Registrar.