VENUGOPAL Vs. M GOPALAKRISHNAN

JUDGEMENT

(1.) THIS Civil Revision Petition has been directed against the order passed by the Execution Court in REP.No.165 of 1981 in TPT.SC.OS.No,81 of 1964 on the file of the Court of District Munsif, Tirupattur. O.S.No,79 of 1945 was filed by one Meenammal for partition before the Court of Subordinate Judge, Vellore. The said suit has subsequently been transferred to the Subordinate Court, Tirupattur and renumbered as O.S.No,81 of 1964. A decree has been passed in the said suit and the same was challenged in an appeal in A.S.No.145 of 1960 before this Court wherein it was held that the plaintiffs 2 & 3 are entitled to one half share in the plaint schedule property and remaining one half belongs to D28 to D30 and there is also a direction in A.S.No.145 of 1960 as to the effect that D28 to D30 have to pay necessary Court Fees for partition and separate possession of their half share in the plaint schedule properties. The matter went to the Honourable Apex Court in Civil Appeal No.1471 of 1967. There was an compromise entered into between the plaintiffs 2 & 3 and D28 to D30 - who are the respondents 19 to 21 in Civil Appeal NO.1471 of 1967 before the Honourable Apex Court. As per the terms of the memo of compromise Respondents 19 to 21 / D28 to D30 have conveyed their half share in favour of the plaintiffs 2 & 3 in lieu of a sum of Rs.26,500/-. The said sum of Rs.26,500/- was also paid by the plaintiffs to Respondents 19 to 21 / D28 to D30 as seen from the orders of the learned District Munsif in REP.No.165 of 1981 in TPT.SC.OS.No,81 of 1964.

(2.) THE learned senior counsel for the revision petitioner challenges the impugned order of the learned District Munsif in REP.No.165 of 1981 in TPT.SC.OS.No,81 of 1964 on two grounds one is that the defendants 28 to 30 have not paid the Court fees for declaration of their share as per the preliminary decree before or after the compromise decree was passed by the Honourable Apex Court in Civil Appeal No.1471 of 1967 and that the mortgage amount of Rs.1,300/- was not paid by the plaintiffs. THE learned Senior Counsel appearing for the respondents would focus the attention of this Court to the counter filed by the revision petitioners / defendants 16 to 18 in EA.No.117 of 1974 in O.S.No,81 of 1964, wherein at paragraph 8 they admit that the respondents / plaintiffs 2 & 3 have deposited the mortgage amount of Rs.1,300/- on 24.01.1974. So the contentions of the learned senior counsel for the revision petitioners that the respondents / plaintiffs 2 & 3 cannot execute the decree on the ground of non-payment of the mortgage amount of Rs.1,300/- falls to the grounds.

(3.) RELYING on Article 45 of the Indian Stamp Act, 1899, the learned Senior Counsel appearing of the respondents would contend that the non-judicial stamp papers furnished by the plaintiff alone is enough for engrossing the final decree and there is no need for D28 to D30 to furnish a separate non-judicial stamp papers for engrossing their share separately. Article 45 of the Indian Stamp Papers Act,1899 reads as follows:-