SUSHIL KUMAR GOENKA Vs. NATHMAL GOENKA

JUDGEMENT

(1.) PERUSED the notes of the Decree Department dated 2.2.2008 in which reference has been made to the decision reported in AIR 1923 Pat 324 as well as Division Bench order dated 27.1.1958 passed in First Appeal No. 77 of 1953. High Court Of Judicature At Patna Versus Ram Kripal Prasad Learned counsel for the parties submit that this first appeal was decreed on compromise and the parties have among themselves settled the matter distributing the specific shares and specific portion of the suit property. Hence, in the said circumstances, there was no occasion for appointment of any Pleader Commissioner.

(2.) They further submit that since first appeal has already been disposed of on 27.7.2006 in terms of the said compromise and final decree has been directed to be prepared there was no occasion left for appointment of Pleader Commissioner. Hence, that plea of the office is not tenable.

(3.) LEARNED counsel for the parties also submit that neither any provision of any Indian Stamp Act, nor any provision of the Patna High Court Rules provide that the High Court would not deal with the non -judicial stamp, whereas Rule 14 of Chapter X of the Patna High Court Rules, 1916 specifically provides that the Deputy Registrar of the High Court having first dated the decree as of the day when the judgment was delivered, shall sign it and sea! it with the seal of the High Court. They further submit that Order XLI Rule 35 (4) of the Code of Civil Procedure provides that the decree shall be signed and dated by the Judge or Judges who passed it. They also contend that in view of the provisions of the Patna High Court Rules in place of Judges it has to be signed by the Deputy Registrar of the High Court. They thus submit that in Probate Case No., 05 of 1997 (Smt. Leshma Dutt @ Lesee V/s. Subhash Sinha) the grant of probate was prepared on non -judicial stamp purchased by the office of the High Court for which money was deposited by the parties to the Probate. They also referred to First Appeal No. 339 of 1977 which had arisen out of a Partition Suit and in the said appeal a compromise petition was filed and by order dated 5.7.1983 this court decreed the suit on compromise directing the compromise petition to be made part of the decree of the High Court, whereafter a decree was prepared by this court and was signed by the Deputy Registrar on 9.8.1983. They further submit that there are a number of similar other appeals also in which decrees were prepared by this court.