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Smt. Kotipalli Mahalakshmamma v. Kotipalli Ganeswara Rao And Others
Factual and Procedural Background
This appeal arises in execution proceedings involving a decree originally passed in 1933 for partition of a one-fourth share in certain properties, mesne profits, and accounts. The preliminary decree was confirmed by the High Court on appeal. A Commissioner was appointed to effect division of the properties, which was completed in 1937 with possession given to the plaintiff. The decree-holder assigned the decree to the appellant, and a final decree was passed in 1945 embodying the partition result and awarding mesne profits. The High Court modified this decree in 1950 by reducing the mesne profits awarded.
In October 1950, the appellant applied to execute the modified final decree, but the executing court dismissed the application on the ground that the decree was composite (partition and mesne profits) and had not been engrossed on non-judicial stamp paper, rendering it inexecutable. Subsequently, the decree was engrossed on stamp paper in 1953. The appellant filed a fresh execution petition in 1954, which was dismissed on limitation grounds. This appeal challenges that dismissal.
Legal Issues Presented
- Whether the execution application filed in 1954 was barred by limitation given the dismissal of the earlier execution application in 1952 for non-compliance with stamp requirements.
- Whether the decree was inexecutable for not being engrossed on non-judicial stamp paper at the time of the earlier execution application.
- The legal effect of engrossing the decree on non-judicial stamp paper after the initial execution application was dismissed.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Satyanandam v. P. Namayya, AIR 1938 Mad 307 | Determination of whether a decree is final or preliminary for the purposes of Section 2(15) of the Stamp Act; effect of furnishing requisite stamp at a later stage on limitation. | The court distinguished this case, holding it had no application as the present decree was only for mesne profits and partition had already been effected and possession given. |
| Khalil-ul-Rahaman Khan v. Collector of Etah, ILR 55 All 993 (AIR 1934 PC 14) | Execution applications made "in accordance with law" must be made within limitation and to the proper court. | The court relied on this to hold the execution application was valid and timely as it was made in accordance with law. |
| Maharaja Sir Rameswar Singh Bahadur v. Homeswar Singh, 40 Mad LJ 1 (AIR 1921 PC 31) | Limitation period runs from a decree or order capable of enforcement; a decree not in enforceable form does not start limitation. | The court applied this principle to hold limitation commenced only after the decree was engrossed on proper stamp paper in 1953, making the 1954 execution application timely. |
Court's Reasoning and Analysis
The court found the Subordinate Judge's dismissal of the execution application in 1952 to be erroneous. The Judge incorrectly treated the decree as composite and inexecutable due to lack of non-judicial stamp paper. The court clarified that partition of immovable property had already been effected with possession given, and the only decree capable of execution was for mesne profits, as modified by the High Court. The final decree of 1945 did not include the property allotment and was not objected to by the judgment-debtor during earlier transactions.
The court emphasized that it is the duty of the court to call for requisite stamp paper when passing final partition decrees, and the decree-holder should not suffer for the court's omission. The cited precedent in Satyanandam was distinguished as it related to a different factual situation involving preliminary versus final decrees and limitation.
Applying the principle from Khalil-ul-Rahaman Khan, the court held that the execution application was made in accordance with law. Additionally, relying on the principle from Maharaja Sir Rameswar Singh Bahadur, the court reasoned that limitation would commence only when the decree was in a form capable of enforcement, i.e., after engrossing on non-judicial stamp paper in 1953. Since the execution petition was filed in 1954, it was within the limitation period.
Therefore, the execution petition could not be held barred by limitation, and the court set aside the dismissal order to allow the execution petition to be heard on merits.
Holding and Implications
The appeal is allowed.
The order of the lower court dismissing the execution petition on limitation grounds is set aside. The execution petition filed by the appellant in 1954 will be taken on file and disposed of on merits. The appellant is entitled to costs both in the court below and in the appellate court. This decision directly affects the parties by permitting execution to proceed but does not establish any new precedent beyond the application of existing law to the facts.
Srinivasachari, J.:— This appeal arises in execution proceedings. The appellant herein is the transferee-decree-holder. The relevant facts necessary for the purposes of this appeal may be stated.
2. A decree was passed by the Subordinate Judge in O.S No. 106 of 1933 in a suit filed for partition of 1/4th share in the suit properties, foe mesne profits and for accounts. The preliminary decree passed by the Subordinate Judge was taken in appeal and the High Court confirmed the decree in A.S 111/1937. An application for the appointment of a Commissioner (I.A 269/1936) was filed to effect a division of the properties. In 1937 the properties were divided and the plaintiff given his share in the immovable properties and possession also was given.
3. After all this was over, the decree-holder assigned his decree in favour of the appellant herein, a final decree was passed on 8-1-1945 embodying the result of the partition and awarding a particular amount to the plaintiff as mesne profits. An appeal was filed before the High Court which modified the decree by reducing the amount payable. This was on 14-3-1950.
4. In October 1950 the appellant herein applied to execute the final decree as modified by the High Court. The Executing court dismissed the application. It held that the decree passed by the Court was composite decree, one for partition of immovable properties and another for mesne profits and as a partition decree it had to be engrossed on non-judicial stamp; As it was not engrossed on the requisite stamp the decree was in executable. This order of dismissal was passed on 13-2-1952. Thereafter the assigaee-decree-holder filed an application I.A 1922–1952 for drafting and engrossing the decree on stamp paper. This was ordered on 3-1-1953 and the decree was engrossed on stamp paper.
5. After this the present E.P was filed on 27-2-1954 being E.P No. 43/1954. Execution was opposed on the ground that the application was barred by limitation. The plea was that the previous application which was dismissed on 13-2-1952 was not one in accordance with law and inasmuch as more than three years had elapsed since the date of the High Court's decree (14-3-50) the execution application was clearly out of time. This plea was upheld and the E.P was dismissed. Hence this appeal.
6. At the outset we must point out that the order of the learned Subordinate Judge of 13th February, 1952 was erroneous when he held that the decree was inexecutable for not having been engrossed on non-judicial stamp. The Judge failed to note that there was only one decree that had been passed by the Court viz., the decree for mesne profits, as modified by the High Court. There was no final decree with regard to the partition of immovable property as immovable properties had been already divided and possession given to the decree-holder. As would be apparent from the order of the Subordinate Judge, the allotment of property in the division of immovable property was not incorporated in the final decree passed on 8-1-1945 and subsequently confirmed after notification by the High Court on 14-3-1950. No objection on the ground that the decree was inexecutable was taken by the judgment-debtor when the assignee-decree-holder drew amounts deposited by the judgment-debtor. Even before the High Court no objection seems to have been taken to the final decree as passed on 8-1-1945; the objection seems to have been to the quantum of the mesne profits awarded.
7. We may also point out that it is the duty of the court when passing final decrees for partition to call upon the parties to furnish the requisite stamp paper for engrossing the decree on such stamp-paper. The decree-holder cannot be made to suffer for the omission of the court in making such direction. The lower court has referred to the case of Satyanandam v. P. Namayya, AIR 1938 Mad 307. There the question was whether a particular decree passed by the Court was final decree or a preliminary decree having regard to the terms of the decree. The learned Judges, Burn and Lakshman Rao JJ., construing the provisions of the decree held that it was a final order of a court for effecting a partition falling within the terms of Section 2(15) of the Stamp Act. They further held that the furnishing of the requisite stamp at a later stage could not be allowed to have a retrospective effect so as to regard the execution application filed after expiry of the period of limition to be within time. That case has no application to the facts of the present case.
8. The position on the date when E.P 104/50 for the recovery of the amount of mesne profits was filed was that there was only one decree capable of execution and the appellant sought to execute that decree. Such an execution application, could not be regarded as being not one in accordance with law. The Privy Council in referring to the expression “made in accordance with law” observed as follows:
“The applications were made in accordance with the provisions of the Civil procedure Code and therefore, in accordance with the law applicable thereto, they were made to the proper court, they were obviously steps in aid of execution and they were made within time”
Vide Khalil-ul-Rahaman Khan v. Collector of Etah, ILR 55 All 993 : (AIR 1934 PC 14). Looked at from another point of view the position will be this. If the contention were accepted that there ought to be a composite final decree, as a matter of fact there was no such composite final decree as such till 3-1-1953 until it was engrossed on nonjudicial stamp paper. This view receives support from the observations of the learned Judge in AIR 1938 Mad 307 wherein the learned judges stated that a final decree for partition has no existence as a decree until it is engrossed on the proper nonjudicial stamp paper; till that is done that suit is pending. If that is the position of law, then limitation could be said to commence only on 3-1-1953 and the application filed on 27-2-54 is certainly within time. Looked at from any point of view the present application can never be held to be beyond time. As was observed by the Privy Council in the case of Maharaja Sir Rameswar Singh Bahadur v. Homeswar Singh, 40 Mad LJ 1 : (AIR 1921 PC 31):
“When the Limitation Act of 1908 prescribes three years from the date of a decree or order as the period within which it must be enforced, the language read with its context refers only to … an order or decree made in such a form as to render it capable in the circumstances, of being enforced.”
The appeal is allowed, the order of the lower Court set aside. The present E.P filed by the appellant on 27-2-1954 will be taken on file and disposed of on the merits. The appellant will be entitled to his costs here and in the court below.
G.C/V.R.B
9. Appeal allowed.
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