GAURI SHANKER Vs. KISHAN LAL AND ANR.

JUDGEMENT

(1.) This execution first appeal arises out of a suit for partition. Kishan Lal filed suit no. 74 of 1947 for partition of certain property situate at Agra and Delhi. Gauri Shanker and Hari Shanker were the defendants in the suit. There was a compromise between the parties on 28-3-1958. In due course a final decree for partition in terms of that compromise was passed by the court. Kishan Lal plaintiff was given half share in the joint property.

(2.) Gauri Shanker and Hari Shanker applied for execution of the partition decree by separating their joint share by metes and bounds. That execution application was opposed by Kishan Lal. He raised various points as regards maintainability of the execution application by Gauri Shanker and Hari Shanker. Kishan Lal's objection was upheld by the learned Civil Judge of Agra. He held on 15.2.1953 that the execution application was not maintainable. Against that order the present execution first appeal has been filed by Gauri Shanker. When the appeal came up for hearing before a learned single Judge, he considered that the case involves a question of considerable importance. He, therefore, referred the case to a larger Bench. That is how this execution first appeal has come up before us.

(3.) The plaintiff-objector raised three points before the execution court. Mr. J.N. Chatterji appearing for the plaintiff-respondent has pressed only one of those points before us. That point relates to the right of a defendants to apply for execution of a partition decree without paying the prescribed stamp duty or court-fee.