Suman Sapra v. Rosy Dabas

1. This Execution Petition has been filed seeking execution of the Preliminary Decree dated 17.09.2012 and Final Decree dated 03.03.2014.

2. Admittedly, the Final Decree has still not been prepared by the Registry for want of valuation of the Suit Property, that is, bearing No. E-3/3, Vasant Vihar, New Delhi-110058, from the concerned Revenue Authorities.

3. The learned counsel for the Decree Holder submits that though communications have been addressed by the Registry of this Court to the Principal Secretary (Revenue) to furnish the valuation report with respect to the Suit Property, the same has not been received till date, because of which the appropriate Stamp Duty to be paid on the Final Decree could not be determined by the Registry and paid by the parties herein.

4. The learned counsel for the Judgment Debtor no.1, placing reliance on the judgments of the Supreme Court in Shankar Balwant Lokhande (Dead) By Lrs. V. Chandrakant Shankar Lokhande and Another, (1995) 3 SCC 413; and West Bengal Essential Commodities Supply Corporation v. Swadesh Agro Farming & Storage Pvt. Ltd., (1999) 8 SCC 315, submits that until the Decree is engrossed on the requisite stamp paper, the same is not executable. He submits that the present petition is, therefore, premature.

5. On the other hand, the learned counsel for the Decree Holder, placing reliance on the judgment of the Supreme Court in Chiranji Lal (D) by Lrs. V. Hari Das (D) by Lrs., (2005) 10 SCC 746, submits that the above two judgments of the Supreme Court have been considered by a larger Bench of the Supreme Court in Chiranji Lal (supra) and it has been held that the Decree becomes enforceable on the passing of the judgment, and even if there is a direction of the Court for furnishing of the stamp paper by a particular date for the purposes of engrossing of the Decree, the period of limitation would begin to run from the date when the Decree is passed and not from the date when the Decree is engrossed on the stamp papers supplied by the parties.

6. He submits that the interest of the revenue can be safeguarded by directing that the proceeds of the sale of the Suit Property would first be applied towards the payment of the requisite Stamp Duty before being divided amongst the parties in accordance with the Final Decree. In support he places reliance on the judgment of the Division Bench of this Court in Arjun Somdutt v. Vivan Somdutt and Ors., MANU/DE/5413/2022.

7. The learned counsel for the International Asset Reconstruction Company Limited (in short ‘IARCL’), drawing reference to the order dated 26.02.2018, supports the submission of the learned counsel for the Decree Holder and states that delay in auction of the suit property leads only to the increase of the liability owed by the Judgment Debtor no.1 and diminishes the security amount available with the IARCL, which stands attached by an order passed by the learned Debt Recovery Tribunal.

8. I have considered the submissions made by the learned counsels for the parties. In Chiranji Lal (supra), the Supreme Court on considering the earlier judgments of Shankar Balwant Lokhande (supra) and West Bengal Essential Commodities Supply Corporation (supra), observed as under:-

23. Such an interpretation is not permissible having regard to the object and scheme of the Indian Stamp Act, 1899. The Stamp Act is a fiscal measure enacted with an object to secure revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponent. The stringent provisions of the Act are conceived in the interest of the Revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of initial defect in the instrument (Hindustan Steel Ltd. v. Dilip Construction Co.) Section 2(14) of the Indian Stamp Act defines an “instrument” as including every document by which any right or liability is, or purported to be created, transferred, limited, extended, extinguished or recorded. Section 2(15) defines “instrument of partition” as any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any Revenue Authority or any civil court and an award by an arbitrator directing partition. Section 3 provides a list of instruments which shall be chargeable with duty of the amount indicated in Schedule I of the Indian Stamp Act. Article 45 of Schedule I prescribes the proper stamp duty payable in case of an instrument of partition. Section 33 provides for the impounding of the instrument not duly stamped and for examination of the instrument for ascertaining whether the instrument is duly stamped or not. Section 35 provides that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties, authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Section 40(b) provides for payment of the proper duty, if the instrument impounded is not duly stamped. Section 42(1) provides for certifying that proper duty has been paid on the impounded instrument. Sub-section (2) provides that after such certification the instrument shall be admissible in evidence, and may be registered, acted upon and authenticated as if it had been duly stamped.

24. A decree in a suit for partition declares the rights of the parties in the immovable properties and divides the shares by metes and bounds. Since a decree in a suit for partition creates rights and liabilities of the parties with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Indian Stamp Act. The object of the Stamp Act being securing the revenue for the State, the scheme of the Stamp Act provides that a decree of partition not duly stamped can be impounded and once the requisite stamp duty along with penalty, if any, is paid the decree can be acted upon.

25. The engrossment of the final decree in a suit for partition would relate back to the date of the decree. The beginning of the period of limitation for executing such a decree cannot be made to depend upon date of the engrossment of such a decree on the stamp paper. The date of furnishing of stamp paper is an uncertain act, within the domain, purview and control of a party. No date or period is fixed for furnishing stamp papers. No rule has been shown to us requiring the Court to call upon or give any time for furnishing of stamp paper. A party by his own act of not furnishing stamp paper cannot stop the running of period of limitation. None can take advantage of his own wrong. The proposition that period of limitation would remain suspended till stamp paper is furnished and decree engrossed thereupon and only thereafter the period of twelve years will begin to run would lead to absurdity. In Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari it was said that the payment of court fee on the amount found due was entirely in the power of the decree-holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed.

26. Rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. As abovenoted, there is no statutory provision prescribing a time-limit for furnishing of the stamp paper for engrossing the decree or time-limit for engrossment of the decree on stamp paper and there is no statutory obligation on the court passing the decree to direct the parties to furnish the stamp paper for engrossing the decree. In the present case the Court has not passed an order directing the parties to furnish the stamp papers for the purpose of engrossing the decree. Merely because there is no direction by the Court to furnish the stamp papers for engrossing of the decree or there is no time-limit fixed by law, does not mean that the party can furnish stamp papers at its sweet will and claim that the period of limitation provided under Article 136 of the Act would start only thereafter as and when the decree is engrossed thereupon. The starting of period of limitation for execution of a partition decree cannot be made contingent upon the engrossment of the decree on the stamp paper. The engrossment of the decree on stamp paper would relate back to the date of the decree, namely, 7-8-1981, in the present case. In this view the execution application filed on 21-3- 1994 was time-barred having been filed beyond the period of twelve years prescribed under Article 136 of the Act. The High Court committed illegality in coming to the conclusion that it was not barred by limitation.”