RAVI KRISHNA Vs. MURALIDHAR AGRAWAL

JUDGEMENT

(1.) The order dated 17.4.1998 passed by the learned Additional Judge (Small Cause Court). Allahabad in Execution Case No. 1 of 1992. In pursuance of the Misc. Case No. 178 of 1995, has since been challenged by the petitioner.

(2.) Shri Vishnu Gupta, learned counsel for the petitioner contends that no final decree has been drawn pursuant to the preliminary decree pursuant to the compromise arrived at between the parties on 4th March. 1955. In Suit No. 97 of 1949, therefore, the decree is not executable. He further contends that the requisite stamp fee was not paid for drawing up of the decree. According to the definition of instrument of partition under Section 2 (15) of the Stamp Act. a decree of civil court is included. The decree being an Instrument of partition is required to be on proper stamp paper. He further contends that a final decree is to be drawn showing the shares of the parties in respect of the property by metes and bounds. He drew the attention of the Court to the certified copy of the decree pointing out that the decree that was drafted is not a final decree but a preliminary decree as is apparent from the form of the expression used in the decree itself. According to him, since the decree is not executable, therefore, the part of the decree which was sought to be executed from Madras Court on transfer of the decree by the executing Court at Allahabad, cannot be proceeded with. As such, the petitioner had filed an application for stay of further proceedings of the execution case since been transferred for being executed through the City Civil Court, at Madras. This application was rejected by the impugned order dated 17th April, 1998, which according to Mr. Gupta is liable to be set aside.

(3.) Shri Prakash Krishna, learned counsel for opposite parties, on the other hand, contended that the petitioner has filed Writ Petition No. 15500 of 1994, which is pending disposal before this Court. This fact is also not disputed by Shrl Vishnu Gupta.