BHOLANATH KARMAKAR Vs. MADANMOHAN KARMAKAB

JUDGEMENT

(1.) The question involved in this revisional application referred to this Special Bench is when a final decree for partition becomes enforceable within the meaning of Article 136 of the Limitation Act, 1963 so that the period of limitation prescribed, therefore, would begin to run thereunder shorn of details not necessary for our present purpose. Article 136 of the Limitation Act provides that "for the execution of any decree (other than a decree granting a mandatory injunction)", the period of limitation is 12 years and that the time from which that period would begin to run is "when the decree becomes enforceable." If a final decree for partition of immovable properties becomes enforceable on the date of its being made or pronounced by the Court, as contended by the opposite parties, the execution in this case was rightly held to be barred by time and the revision must fail. If on the other hand such a decree does not become enforceable until the same is engrossed on requisite stamp papers, as urged by the petitioners, the impugned order holding the execution to be time barred was wrong and the revision must succeed.

(2.) We have heard four days together, learned arguments advanced by Mr. S. P. Roy Chowdhury for the petitioners and by Mr. Ashoke Chakraborty for the opposite parties and we are satisfied that whatever might have been the position under Article 182 of the preceding Limitation Act of 1908, the question should not, in view of the expression used in Article 136 of the present Act of 1963, present any difficulty any more.

(3.) As already noted, the terminus a quo for the period of limitation under Article 136 of the Limitation Act "is when the decree becomes enforceable." A decree for partition is also an "instrument of partition" as defined in Section 2(15) of the Indian Stamp Act, 1899 and is chargeable with stamp duty thereunder. Under Section 85 of the Stamp Act, such a decree for partition can not be admitted in evidence and can not in any way be acted upon by or in any Court unless the same is duly stamped and, therefore, does not become enforceable until engrossed on stamp papers. No citation should be necessary for such an obvious proposition, but yet reference, if need be, may be made to a Division Bench decision of this Court in Gour Chandra vs. Prasanna Das (65 CWN 748 at 745). The question as to when a decree for partition becomes enforceable within the meaning of Article 136 of the Limitation Act, 1963 cannot, in our view, be decided without reference to the relevant provisions of the Indian Stamp Act, 1899, referred to hereinabove.