ALLADI Vs. SHAMIM BANO

JUDGEMENT

(1.) THE present petition has been filed by the petitioner-judgment debtor under Section 115 of CPC challenging the order dated 7.11.2012 passed by the Civil Judge (JD) Deoli, District Tonk (hereinafter referred to as the "executing court "), whereby the executing court has dismissed the application of the petitioner filed under section 47 read with section 151 of CPC in Civil Misc. Execution Application No.6/2010.

(2.) IN the instant case, there are certain undisputed facts. It is not disputed that the respondent no.1-plaintiff-decree holder filed the suit against the petitioner and the respondent no.2-defendants-judgments debtors seeking her 1/3rd share in the suit properties. The defendants had not contested the suit and an ex-parte decree dated 24.2.2009 came to be passed by the Civil Judge(JD) Deoli, District-Tonk (hereinafter referred to as "the trial court ") in Civil Suit No.5/2005

(3.) IT has been sought to be submitted by learned counsel Mr. GP Sharma for the petitioner that the final decree of the court being an instrument of partition within the meaning of section 2 (XX) of Rajasthan Stamp Act (hereinafter referred to as "the said Act "), the same is chargeable to duty under the said Act and unless the requisite stamp duty is paid up by the respondent no.1 towards her 1/3rd share in the suit properties as per the decree, the said decree could not be acted upon or executed in view of section 39 of the said Act. According to him, the executing court has failed to appreciate the said provisions and wrongly dismissed his application. The learned Sr. counsel Mr. RK Agarwal for the respondent no.1, while not disputing the legal position that the final decree of partition passed by the trial court would be an instrument of partition liable for the payment of stamp duty, he has submitted that there was no direction by the trial court or executing court for the payment of stamp duty as required under the said Act. He submitted that the respondent No.1 is ready and willing to pay the requisite stamp duty if directed by the court.