RAGHUBIR SAHU Vs. AJODHYA SAHU

JUDGEMENT

(1.) This application is against the orders dated 21 June 1944, of the Subordinate Judge, first Court, Monghyr by which he rejected the petitioner's objection to the engrossment on stamped paper of the decree in Title Suit No. 425 of 1921 of that Court. It appears that the suit was for partition of a joint family estate. It was decreed on compromise on 17 December 1921. On 20th December J921, the parties were directed to file requisite on-judicial stamp for the final decree. None of the parties filed the requisite stamp. After a lapse of more than 22 years defendant 3 filed a petition on 15 April 1944 by which he offered to file non-judicial stamp for the preparation of the final decree. The Court issued notice on the parties concerned to show cause by 29 May 1944 why the prayer of defendant 2 should not be allowed. No abjection was filed. On 31 May 1944, the Court passed an order for the engrossment of the decree on the stamp. On that date defendant 3 filed non-judicial stamp worth Rs. 156-12-0 for final decree. The office was directed to report as to the sufficiency of the stamp. On office report the defendant was directed on 3 June 1944, to state the value of the property under partition and to furnish other details by 8 June 1944. On that date, defendant 7 appeared and asked for time to file objections. On 10 June 1944, (sic) objections to the preparation of the decree. The main objections were that the decree was not a valid one and the minor defendants in the suit were not properly represented, that the decree having been passed more than 20 years before, no final decree could be prepared after the lapse of such a long time and that after the passing of the decree some of the properties which were the subject-matter of the suit had become non-existent and some had passed out of the hands of the parties and some others had changed their feature and were subject to liabilities. The Court rejected all the objections for the reason stated in the order. Defendant 7 presented this application for the revision of the said order.

(2.) The learned advocate for the petitioner contended that the decree was not engross.::!; on stamped paper and so the suit must be deemed to be pending and final decree should not be prepared until the persons interested in the properties were served with notice and without a proper enquiry as to the existence and conditions of the properties that formed the subject of partition in the said suit. In my opinion, there is no substance in these contentions. R. 18 of order 20, Civil Procedure Code provides: Where the Court passes a decree for the partition of property or for the separate possession of a. share therein, then, (2) if ir. so far as such decree relates to any other immoveable property or to moveable property, the Court may, if the partition or separation canno, be conveniently made without further inquiry, pa i a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.

(3.) In the present case, the decree was passed on compromise. It was admitted that by the compromise, the properties allotted to the share of each party were clearly specified and schedules of properties allotted to each were appended to the compromise petition. Therefore, no further enquiry was at all necessary. In; such circumstances, the decree did not merely declare the rights of the several parties interested in the properties but also allotted the properties according to the respective shares of each party. Therefore, it was not a preliminary decree but it was the final decree in the suit. A compromise decree in a partition suit allotting specific parcels to the parties is a final order for effecting partition : Muzaffar Husain V/s. Sharafat Husain AIR 1933 Oudh 362. There being already a final decree, the only thing that remained to be done was to engross it on. a stamped paper under Art. 45, Stamp Act, 1899. The decree to be engrossed on the stamp will bear the date of the decree, 17 December 1921, and will declare the position of the parties in respect of the [properties on that date. There is no time limit [prescribed by the statute for the engrossment, of a portion decree on stamp of requisite value. In fact no date, was fixed by the Court for the purpose. Therefore, mere engrossment of the decree on stamped paper of the requisite value will not in any way affect the interest of the parties, in respect of the properties though, changes may have taken place, in regard to the properties since the decree was made on 17 December 1921. The only effect of engrossment of the decree on stamped paper would be that it will be rendered legaly effective which it is not until so engrossed. I, therefore, see no substance whatsoever in the. abjections. raised by the petitioner to the engrossment of the decree on stamped paper. The application is dismissed. Hearing fee one gold mohur. Sinha, J.