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1990 DIGILAW 529 (KER)

K. Rajendran Nair v. Kaliyani Kutty Amma

1990-12-07

G.RAJASEKHARAN

body1990
ORDER G. Rajasekharan, J. 1. The Revision Petitioner is the legal representative of the original plaintiff who obtained a partition decree in O. S. No. 346/1967 of the Munsiff's Court, Chittoor. 2. The final decree was on 12-4-1975. There was appeal and second appeal and this court confirmed the decree on 1-2-1978. The original plaintiff died on 30-3-1979. In the meanwhile the records of the case were sent to the record section by virtue of the provisions contained in R.238 Civil Rules of Practice, since nobody produced the requisite stamp paper and there was no stamp paper. 3. The petitioner filed I. A. No. 1029/1983 on 21-6-1983 producing along with it the requisite value for stamp paper for engrossing the final decree. The court below dismissed that application observing "the entire proceedings in I. A. No. 390/1977 is seen to have come to an end before the death of the petitioner's father. I do not think that S.146 C. P. C. will be attracted in this case". I fail to understand what the learned Munsiff meant when he said "that the proceedings have come to an end before the death of petitioner's father." 4. After the passing of the final decree the subsequent steps in relation to the production of requisite stamp paper and engrossing the decree on the stamp paper are purely administrative steps and the only consequence when the party failed to produce the requisite stamp paper in time is the consignment of the papers to the record section. That does not mean that the proceedings have come to an end and the parties will not get the decree engrossed on stamp paper as and when an application in filed in that respect. 5. Time and again this court has clarified the position but some of the subordinate courts are repeating the same mistake. 6. Rule 238 (1) specifically enjoins that the records shall be consigned to the record room if the parties fail to produce the amount required for the stamp papers as directed by the court. The rule further says that rules regarding destruction of records shall not apply in such cases. 7. Sub rule (2) of R.238 specifically enables the parties to move the, court by petition to get the decree engrossed on stamp paper on production of requisite value for stamp paper. The rule further says that rules regarding destruction of records shall not apply in such cases. 7. Sub rule (2) of R.238 specifically enables the parties to move the, court by petition to get the decree engrossed on stamp paper on production of requisite value for stamp paper. There is no limitation for making such an application and there is no question of "proceedings coming to an end". The lower court committed a manifest error in dismissing the application resulting in material irregularity and illegality. The order cannot be sustained. 8. It was submitted that the question as to whether the revision petitioner is the sole heir of the deceased plaintiff either by virtue of being the sole survivor or by virtue of the will relied on by him may be left open to be decided by the lower court. No doubt, this court, in this C. R. P., is not making any decision in that point. The court below will consider that matter as and when that arises. 9. The revision petition is allowed and the order on I. A. No. 1029/1983 of the lower court is set aside. The court below shall take I.A. No. 1029/1983 to its file and dispose of that according to law and in the light of the observations made above. No order as to costs in the circumstances.