Mrs. Mehboobunissa v. Iftikar Ali Khan — 1997 DIGILAW 213 (RAJ)

Honble SHARMA, J. – Core questions which arise for consideration in the revision is whether in the case of joint decree holders, is it permissible by law for one, or more out of several decree holders to present an application for execution, and should a decree for partition be engrossed on stamp paper? (2). These questions have emerged in the following circumstances : BACK GROUND FACTS (i) One Shri Ahmed Ali expired leaving behind him three sons, namely, Mohd. Ali, Iftikar Ali and Shaukat Ali. The property in dispute belonged to Late Shri Ahmed Ali. Shaukat Ali, after the death of Ahmed Ali, instituted a suit for partition of the property against Mohd. Ali and Iftikar Ali, which was decreed on 3.3.1971. (ii) Mohd. Ali thereafter, expired. Smt. Mehbubunnisa, petitioner, applied for the execution of the partition decree on or about 19/23.8.1980, claiming her the legal representative of late Mohd. Ali, as Smt. Afifunissa wife of late Mohd. Ali, had also expired and she being the daughter of late Mohd. Ali, was entitled to obtain possession of the property which came to her share. (iii) In the execution petition mentioned hereinabove, Iftikar Ali raised objection that late Mohd. Ali in whose favour the partition decree existed, had also left other legal representatives who were ne- cessary parties to the execution petition and without, joining them the execution petition could not have been proceeded with. It was also objected that decree for partition was not engrossed on non-judicial stamp paper therefore, it could not have been executed. The petitioner moved an application on 26.2.1981 seeking permission of the executing Court to produce necessary non-judicial stamp papers. (iv) The petitioner moved another application u/s. 151, r/w O.6 R. 17 and O.21, R. 17 CPC, in order to obviate the objections with a request for amending the execution application to the effect that the other legal heirs of late Mohd. Ali, such as his son and daughter are not prepared to be made a party and, hence the execution application may be executed for the benefit of and for protecting the interest of even those persons who have not joined in the application. (v) The executing Court allowed the amendment application vide its order dated 24.3.1984. Iftikar Alis legal representatives challenged the said order by filing a revision before this Court. (v) The executing Court allowed the amendment application vide its order dated 24.3.1984. Iftikar Alis legal representatives challenged the said order by filing a revision before this Court. While allowing the revision, this Court on 4.8.1986 observed as under :– ``However, the application for amendment is not being disallowed on the ground that a fresh application has become barred by time, because, this bridge will have to be crossed by the decree holder only when this objection is raised. It will depend upon whether an execution application moved only by one of the joint decree holders can be of any use to the decree holder in saving limitation. (vi) The petitioner, therefore, moved another application before the executing Court u/O. 21 Rr. 15 & 16 CPC on 15.5.1987 wherein it was stated that the execution application filed by her was for the benefit of all and for protecting even the interest of those persons who were not joined in the execution petition. In the reply to the said application it was submitted that nothing remained to be decided as the matter stood finally adjudicated by the High Court. It was also objected that award was neither passed on stamp paper nor it was registered and thus it was not executable. It was again repeated that the execution petition was not maintainable as other legal representatives of late Mohd. Ali were not impleaded in the execution petition. (vii) The executing Court vide its order dated 3.2.1988 dismissed the execution as not maintainable. Against the said order, present action for filing the revision has been resorted to. STATUTORY BACK GROUND (3). Before adverting to the rival contentions raised before me it is necessary to examine the provisions of O.21 R.(15) CPC, which runs as follows :– ``15. Application for execution by joint decree holder – (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. (2) Where the Court sees sufficient cause for allowing the decree to the executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application. (4). A bare perusal of this rule would show that in the case of joint decree holders, it is not necessary that all of them should apply for the execution of the decree unless the decree itself imposes such a condition. This rule permits that one, or more of the decree holders may apply for the execution of the whole decree, but such an application must be for the benefit of all the decree holders and if some one of the decree holders has died, it should be for the benefit of the survivors and the legal representatives of the deceased. This clearly means that although one or more of the decree holders are permitted to take out the execution of the whole decree, it is not for their benefit alone but for the benefit of all the decree holders or their legal representatives. The sub-rule (2) provides that if the Court considers that there is sufficient cause to allow execution of the decree on the application of one or more of the decree holders, then it is incumbent on that Court to make such orders, as may be proper in the circumstances of the case, for protecting the interests of the persons who have not jointed in the application. (5). It is O. 21 R. 11 Sub-Rule (2) which lays down in what form an application for execution should be made and how it should be signed and verified. It is clear from the language of the said rule that an application for execution may be signed and verified either by the applicant himself or by some other person who is proved to the satisfaction of the Court to be acquainted with the facts of the case. It is clear from the language of the said rule that an application for execution may be signed and verified either by the applicant himself or by some other person who is proved to the satisfaction of the Court to be acquainted with the facts of the case. The rule does not lay down in clear words whether in the case of joint decree holders, the application should be signed by one or all of them in case they are all shown as applicants, but when the law allows another person to sign and verify the application on behalf of the decree holder if the Court is satisfied that he is acquainted with the facts of the case, then it follows as a necessary corollary that the signatures of all the applicants on the execution petition are not necessary. Those decree hol- ders whose names are shown among the applicants should be considered parties to the application even though only one or some of them has signed the application. RIVAL CONTENTIONS (6). In this context now I proceed to examine the submissions of Mr. U.N. Bhandari, the learned counsel for the petitioner that the decree under execution was a partition decree based on the compromise with the consent of Iftikar Ali himself as back as in the year 1971, therefore, Iftikar Ali and his legal heirs is were estopped from raising technical objections regarding non- impleading of other legal heir of late Mohd. Ali. On account of sheer technicalities justice cannot be denied to the petitioner. The Court below had not properly appreciated the provi- sions contained in O. 21 R. 15 CPC. The Court below while passing the impugned order, was mainly guided by the order of this Court but did not properly appreciate the observations made thereunder. It was no where mentioned in the order of this Court that the application as it stood, was not maintainable without impleading the other co-decree holders. As a matter of fact, this question was left open by this Court at that time. An unwarranted interference was drawn by the executing Court that by allowing the execution petition to be proceeded would mean negativing the orders of the High Court. The Court below grossly erred in dismissing the execution petition on the ground that decree was inexecutable as the same was not on a non-judicial stamp paper. An unwarranted interference was drawn by the executing Court that by allowing the execution petition to be proceeded would mean negativing the orders of the High Court. The Court below grossly erred in dismissing the execution petition on the ground that decree was inexecutable as the same was not on a non-judicial stamp paper. Law is well settled that compromise decree was not re- quired to be executed on a stamp paper. Reliance was placed on Chimna vs. Chunni Lal & Anr.(1) , Prabhat Kumar vs. Tahara Khatun & Ors.(2), Gordhan Lal vs. Hukam Singh(3), Shri Devi vs. Kashi Ram(4), Nawab Nazhat-Ud-Dowla vs. Beni Madhav(5), Chuttan Lal vs. P.N. Bank(6), Hindustan Steel Ltd. vs. M/s. Dilip Construction Co.(7), Sri Kant vs. Bans Raj Singh (8), Banshi Lal vs. Nand Lal(9) and , Allwri B. Raju vs. Allwri Raja.(10). (7). Mr. Sagar Mal Mehta, learned counsel for the non-petitioner, on the other hand, supported the impugned order and canvassed that the petitioner in the execution petition stated that she was the only successor of late Mohd. Ali as such it cannot be said that the execution petition was filed protecting the interests of co- decree holders. The application filed by the petitioner u/O. 21 R. 15 CPC had been filed after twelve years from the date of the decree, therefore the provisions of Limitation Act come into play. The Court below had rightly hed that a final decree for partition has no existence as a decree until it is engrossed on proper non-judicial stamp paper. Learned counsel in support of his contentions cited Mst. Nasiban & Anr. vs. Surendra Nath Karan Deo & Ors(11),Y. Laxman vs. Y. Narsava(12), Noor Zaman Khan vs. Mst. Maimunissa Bibi & Ors.(13), Board of Revenue vs. Moidenn and Pandvi Satyananandan & Ors. vs. Param Kusam Nammagva & Anr.(15) SCOPE OF ORDER 21 RULE 15 CPC (8) Coming to the case cited at the bar Allwri B. Raju vs. Allwri Raja (supra) relied upon by the learned counsel for the petitioner was a case where the Andhra Pradesh High Court observed that ``An application for execution of the whole decree by one of the joint decree holders without the permission of the Court is not invalid even if the application does not mention the names of all the decree holders or does not state that it is for the benefit of all the decree holders. It is not absolutely necessary that the names of all the decree holders should be mentioned or that there should be a recital that it is being executed for the benefit of all the judgment creditors. Such application would serve as a step-in-aid of execution to keep the decree in force. (9). Sri Kant vs. Bansrai Singh (supra) was the case where the scope of O. 21 R. 15 CPC was considered and it was held that application for execution of decree filed by one of the co-decree holders for the benefit of other decree holders, was maintainable. (10). Nawab Nazhat-Ul-Dowla vs. Beni Madhav (supra) was the case where the Division Bench of Calcutta High Court laid down that ``when an application is made u/O. 21 R. 15 CPC, the Court has to pass proper order to protect the interest of all the decree holders but it is in the discretion of the Court whether or not notice should be given to the other decree holders or to the judgment debtor before making an order for execution, and if the other decree holders subsequently come in and given their consent to the execution of the decree, their interests are properly safeguarded. (11). Smt. Shri Devi vs. Kashi Ram (supra) was the case where this Court observed that it was not necessary for one of the substituted decree holders to state expressly that the decree holder proceeding with execution for the decree, was doing so for the benefit of all the decree holders. The execution, which was being levied by the husband, was for the benefit of both the decree holders i.e. husband and wife, fulfilling the requirements of O. 21 R. 15 was competent and did not suffer from any illegality. (12). Prabhat Kumar vs. Tahara Khatun (supra) was the case where the duty of the executing Court in guarding the interests of joint decree holders, was laid down and it was held that ``where some of the decree holders institute execution proceedings and the notice of this execution proceeding does not go to other joint decree holders, the Court may direct issuance of notice on them, and may also enquire as to whether the execution proceedings is for the benefit of all the decree holders. It is not for the judgment debtor to oppose execution of the decree on the ground that sufficient steps have not been taken to safeguard the interest of the other decree holders and/or that the decree holders for the execution of the decree have not established that the said execution proceeding is for the benefit of all the decree holders. (13). Chimna vs. Chunnilal (supra) was the case where the Division Bench of this Court laid down that when application is made u/O. 21 R. 15, it is the duty of the Court to take such steps as may be necessary in the circumstances of the case to protect the interests of the persons who have not joined in the application. (14). Mst. Nasiban & Anr. vs. Surendra Nath Karan Deo & Ors. (supra) was the case where the Division Bench of Patna High Court observed that where an execution application is filed by only some of the decree holders, but it is then amended as application on behalf of all the decree holders, such an amendment has the effect of changing the whole character of the execution petition and is not one contemplated by Rs. 17 and hence should not be allowed. (15). Noor Zaman Khan vs. Mainunnissa Bibi & Anr. (supra) was the case where it was held that an application filed by a person claiming to be a donee of 8 annas share in the decree, for execution of his share of the decree without follow- ing the procedure u/O. 21 R. 15 is not maintainable and is invalid. (16). The legal position that has emerged from the above decision, is that when an application is made u/O. 21 R. 15, the execution Court has to pass proper order to protect the interest of all the decree holders. Such application, if filed by one of the joint decree holders for the execution of the whole decree, is not invalid even if it does not state that it is for the benefit of all the decree holders. Such application, if filed by one of the joint decree holders for the execution of the whole decree, is not invalid even if it does not state that it is for the benefit of all the decree holders. It is not for judgment debtor to oppose execution of the decree on the ground that sufficient step have not been taken to safe guard the interest of the other decree holders and that it has not established by the decree holders that the execution proceedings is for the benefit of all the decree holders, it is the duty of the executing Court to take such steps as may be necessary in the circumstances of the case to protect the interest of the persons who have not been joined in the application. SHOULD A DECREE FOR PARTITION BE ENGROSSED ON STAMP PAPER? (17). This takes me to the second question which arises in this revision as to whether a decree for partition should be engrossed on stamp paper or not? in this respect the Court below has placed reliance on Pandvi Stava Nandan & Ors. vs. Param Namaavva & Anr. (supra) where it was held by the Division Bench of Madras High Court that a decree for partition can not be executed by a civil Court, unless it is engrossed on a proper non-judicial stamp paper. The decree and the proceedings taken thereunder cannot become validated with retrospective effect on the production of the proper-non-judicial stamp. (18). Board of Revenue vs. Moideen (supra) was the case where the Full Bench of Madras High Court observed that a final decree for partition is an instrument of partition as defined u/s. 2 of the Stamp Act, 1899. Such a decree can only be engrossed on stamp papers of sufficient value. (19). Y. Laxmi vs. Y. Narabavva (supra) was the case where the Division Bench of the Andhra Pradesh High Court laid down that final decree for partition has no existence as a decree until it is engrossed on a proper non-judicial stamp paper, and till that is done, the suit will be considered as pending. (20). Chhutan Lal vs. The Punjab National Bank Ltd., Ajmer & Ors. (20). Chhutan Lal vs. The Punjab National Bank Ltd., Ajmer & Ors. (supra) was the case where the Division Bench of this Court observed that a decree made on the basis of an unregistered award though passed in contravention of law, is binding and conclusive and cannot be said to be a nullity to be questioned in execution. Judgment debtor cannot raise objection in execution that decree is nullity as award was not registered. (21). Girdhari Lal vs. Hukam Singh & Ors. (supra) was the case where the Supreme Court observed that unless terms of compromise decree necessarily involved execution of deed of conveyance, registered deed is not necessary for its enforcement. (22). Banshilal vs. Nand Lal (supra) was the case where the Division Bench of the M.P. High Court held that decree based on unregistered award is not a nullity and cannot be challenged in execution. (23). Hindustan Steel Ltd. vs. M/s. Dilip Construction Co. (supra) was the case where the Supreme Court observed that ``The Stamps Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicallity to meet the case of his opponents. The stringent provisions of the Act are conceived in the interest of Revenue. Once that object is secured according to law, the party stacking his claim on the instruments will not be defeated on the ground of the initial defect in the instrument. (24). The conclusion which flows from the above judicial pronouncement, is that the Stamp Act is not enacted to arm a judgment debtor with a weapon of technicality to meet the execution petition filed against him by the decree holder. No doubt that a final decree for partition should necessarily be engrossed on a proper non-judicial stamp paper in view of the provisions of the Stamp Act but the stringent provisions of the Stamps Act are conceived in the interest of revenue. Once that object is secured according to law, the party stacking his claim on the instrument will not be defeated on the ground of initial defect in the instrument. (25). The observations made by the Apex Court in Hindustan Steel Ltd. vs. M/s. Dilip Construction Co. Once that object is secured according to law, the party stacking his claim on the instrument will not be defeated on the ground of initial defect in the instrument. (25). The observations made by the Apex Court in Hindustan Steel Ltd. vs. M/s. Dilip Construction Co. (supra) overruled the ratio of Pandivi Satya Nandams case (supra) in which it was held that a partition decree which was not engrossed on a proper non- judicial stamp paper cannot be executed and cannot become validated with retrospective effect on the production of proper non- judicial stamp. (26). According to Sec. 36 of the Stamp Act, 1899, an instrument once admitted in evidence shall not be called in question at any stage of the same suit or proceeding on the ground that it has not been duly stamped. Section 36 does not prohibit a challenge against an instrument that it shall not be acted upon because it is not only duly stamped, but on the account there is no bar against an instrument not duly stamped being acted upon after payment of the Stamp duty and penalty according to the procedure prescribed by the Act. The doubt, if any, is removed, by the terms of Sec. 42(2) which enact, in terms unmistakable, that every instrument endorsed by the Collector u/s. 42(1) shall be admissible in evidence and may be acted upon as if it had been duly stamped. (27). The Supreme Court in Hindustan Steels case (supra) observed that Sec. 42(2) of the Stamp Act, expressly renders an instrument, when certified by endorsement that proper duty and penalty have been levied in respect thereof, capable of being acted upon as if it had been duly stamped. (28). Provisions of Sec. 42(2) of the Act are also applicable to the partition de- cree. The finding of the executing Court below that the defect of execution petition could not have been cured and the decree cannot become validated, is perverse in view of the ratio of Hindustan Steels case (supra). The Court below ought to have allowed the application of the petitioner submitted on 26.2.1981 for production of non-judicial stamp paper in view of Sec. 42(2) of the Act. (29). As already observed by me in the earlier part of this judgment, the application filed u/O. 21 R. 15 CPC on 15.5.1987 should also have been allowed by the Court below. (29). As already observed by me in the earlier part of this judgment, the application filed u/O. 21 R. 15 CPC on 15.5.1987 should also have been allowed by the Court below. The judgment dated 4.8.1986 was misinterpreted by the executing Court. An unwarranted inference was drawn by the Court below that by allowing executing petition to proceed would mean negativing the orders of the High Court. The Court below thus committed jurisdictional error and if the impugned order is allowed to stand it would occasion failure of justice. (30). Consequently, I allow the revision and set aside the impugned order. Both the applications of the petitioner, submitted for production of non-judicial stamp paper on 26.2.1981 and u/O. 21 R. 15 CPC on 15.5.1987, are accepted. Record of the case be sent back forthwith. Looking to the fact that decree was passed in the year 1971 direct the executing Court to adjudicate the execution petition expeditiously. Costs easy. Parties are directed to appear before the executing Court on 26.2.1997.