CHANDRAMA SINGH Vs. AWADH BIHARI SINGH

JUDGEMENT

(1.) The only question of law canvassed in this case is whether the production of an unstamped instrument in obedience to the order of the Court is production within the meaning of Sub-section (1) of Section 33 of the Indian Stamp Act. The facts of this case lie in short compass and may be briefly stated, One Sheoshankar Pandey obtained two money decrees against the opposite party judgment-debtors, and for realisation of the decrees he levied two executions, being Execution Cases 1191 and 1192, both of 1951, On 15-5-1952 he assigned the two decrees to Chandrama Singh, the petitioner before this Court, by a registered deed of assignment which he described as Transfernama. On the strength of this assignment the petitioner presented on 21-4-1955 an application for execution in respect of one of the decrees in the Court of the 1st Additional Munsif Arrah, which was numbered as Title Execution Case 717 of 1955. In this application the petitioner alleged that the decree has been transferred to him by the original decree-holder, Sheoshankar Pandey, and prayed for permission to execute the decree. On 18-6-1955 the executing Court asked the petitioner decree-holder to produce the registered deed of assignment, and the same was filed on 30-6-1955. The execution proceeded and notices as required by Rule 16 of Order XXI of the Code of Civil Procedure were issued. On 29-2-1956 the opposite party, it appears, raised an objection that the deed of assignment was insufficiently stamped, whereupon the Court directed the Sheristedar to examine and check the document and to report whether stamp duty and penalty were leviable. The Sheristedar submitted this report, and on the strength of it the following order was passed on 1-3-1856 : "Sheristadar's report seen. D. Hr (O.P.) to deposit Rs. 82/8/- as duty and 825/- as penalty by the date fixed. Inform." (The next date fixed was 2-3-1956). The petitioner has come up in revision against this order.

(2.) Learned counsel for the petitioner put forward the argument that the lower Court had no power to impound this document and demand payment of stamp duty and penalty, and its order was wholly without jurisdiction. He submitted that for an execution under Order 21, Rule 16 of the Code the production of the deed of assignment was not necessary and further that production, as envisaged by Section 33(1) of the Indian Stamp Act is voluntary production, and a production under compulsion of the Court's order is not a production in law and, therefore, the deed of assignment, though produced in Court, did not come within the purview of Section 33 (1) of the Act. This contention is wholly untenable and cannot be accepted as correct. Sub-section (1.) of Section 33 provides as follows :

(3.) It was next contended that the executing Court had no authority to order production of the document, as for the purposes of execution under Order XXI. Rule 16 of the Code, the production of the deed of assignment is not imperative. His contention is that the Court should have issued notice under Rule 16 of Order XXI to the other side without examining the document. In support of his contention, he referred to the decisions in the cases of Sundaraalakadiresa Thevar v. Avudai Ammal, AIR 1942 Mad 495; Meenakshiammal v. Krishnaswami Iyer,. AIR 1952 Mad 90; and Mst. Gulab Kuer v. Syed Moham-mad Zaffer Hassan Khan, AIR 1921 Pat 180. These decisions do not support his contention. All that they lay down is that the production of the instrument of transfer of the decree along with the ap-plication for execution is not necessary, and this seems, to be correct. When an application for execu-tion is filed and it conforms to the provisions of Order XXI, Rules 11 to 14, the application for execution must be taken on file, numbered and proceeded with. The Court cannot outright reject the application simply because it is not accompanied by a deed of assignment. They do not, however, lay down that the Court is also precluded from calling for the deed of assignment subsequently in order to satisfy itself whether or not there was a bona fide assignment of the decree. On the contrary, the ratio of the decision in the case of Sundarabalakadiresa Thevar, AIR 1942 Mad 495, goes against the contention of learned counsel. It has been clearly laid down that after the application for execution has been filed and registered, the executing Court may call for the deed of assignment as also any other information that the Court may think, necessary in order to proceed with the execution. The contention of learned counsel if allowed to prevail will rob Rule 16 of Order XXI of its significance. It will amount to saying that the Court should act automatically without applying its mind to the validity or otherwise of the deed of assign-ment, or without deciding the disputes between the parries. The very object of issuing notices under this rule to the transfer is to determine once for all, and in the presence of all parties concerned, the validity of the assignment. Vide Brajabashi Modak v. Manik Chandra Modak, AIR 1927 Cal 694. This contention of learned counsel has no substance and must be rejected.