(1.) This is an appeal by the decree-holders from an order passed by the Additional District Judge of Dacca reversing an order of the Subordinate Judge, First Court of that place, in an execution proceeding relating to a decree which is based on an award. The decree was put into execution in Execution Case No. 22 of 1931. An objection was taken on behalf of the judgment-debtors that the decree had not been drawn up on a non-judicial stamped paper as required by law. On 18 January 1932, this objection was upheld by the Subordinate Judge who ordered that the execution case should be dismissed and that the decree-holders would have liberty to have a fresh decree drawn up on a stamped paper according to law and then file a fresh application for execution. On 1 February 1932, a non-judicial stamp of 12 annas having been supplied by the decree-holder the Court which had made the decree, ordered the stamp to be annexed to the decree as originally drawn up and to have it defaced, the names of the parties and the cause title of the case being put down on it. It appears further that a note of this was made on the original decree and the Judge also put down his initials on it with the date 1 February 1932. The decree was thereafter put into execution again. Several objections were taken on behalf of the judgment-debtors to this execution. All of, them have now been overruled by the Additional District Judge with the exception of one which he has allowed and which forms the subject-matter of this appeal. The objection which the Additional District Judge has upheld relates to the defect which, according to the judgment-debtors, there was in the decree on the ground that the decree was not drawn up on the non-judicial stamped paper itself but was drawn up upon separate sheets of paper to which, as already stated, the non-judicial stamp paper was subsequently annexed. The learned Judge has held that there is an express provision in the Stamp Act, namely, Section 13 that the document must be written so that the stamp would appear on the face of it and he has held that the omission to write on the stamped paper itself cannot be condoned and accordingly the decree under execution was invalid and incapable of execution. We are not concerned with the other objections of the judgment-debtors in this appeal. So far as this conclusion of the learned Judge is concerned, it had been assailed before us on the strength of the decision of this Court in Rafiuddin V/s. Latif Ahmed (1910) 7 IC 94. In that case, a final decree for partition had been drawn up on a court-fee stamp instead of a non-judicial stamp and it was not until the decree had been appealed from and was sought to be executed that the mistake was discovered. This Court held that: On the plaintiff depositing a non-judicial stamped paper in the appellate Court and on the proper entries being made thereupon, the decree would be validated with retrospective effect from the date when it was drawn up.
(2.) In giving their direction as to how the defect should be remedied the learned Judges said: We therefore direct the plaintiff petitioner to file a non-judicial stamp of the value of Rs. 100; this will be defaced, and the cause-title and names of the parties in the Court below will be written on it; it will then be attached to the decree as already drawn up. This, in our opinion will be sufficient to validate the decree with retrospective effect from the date when it was drawn up on the principle explained by this Court in Chhayemannessa Bibi V/s. Basirar Rahman (1910) 37 Cal 399.
(3.) What has been done in this case is exactly what was required to be done in Rafiuddin v. Latif Ahmed (1910) 7 IC 94, to which we have just referred. We must therefore hold that the decree when it was subsequently put into execution in the second execution case was entirely in order. Our attention has been drawn by Mr. Mukherjee, appearing on behalf of the respondents, the judgment-debtors, to the decisions of this Court in Jotindra Mohan Tagore v. Bejoy Chand Mahtap (1905) 32 Cal 483, in which it was held that: a decree for partition, to be operative, must be engrossed on stamped paper as required by the Stamp Act, and until the Judge signs the decree so engrossed, it cannot be said that the suit has terminated,