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2008 DIGILAW 649 (PAT)

Sushil Kumar Goenka v. Nathmal Goenka

2008-04-29

S.N.HUSSAIN

body2008
Judgment 1. Perused the notes of the Decree Department dated 2.2.2008 in which reference has been made to the decision reported in AIR 1923 Pat 324 as well as Division Bench order dated 27.1.1958 passed in First Appeal No. 77 of 1953. 2. Learned counsel for the parties submit that this first appeal was decreed on compromise and the parties have among themselves settled the matter distributing the specific shares and specific portion of the suit property. Hence, in the said circumstances, there was no occasion for appointment of any Pleader Commissioner. They further submit that since first appeal has already been disposed of on 27.7.2006 in terms of the said compromise and final decree has been directed to be prepared there was no occasion left for appointment of Pleader Commissioner. Hence, that plea of the office is not tenable. 3. Learned counsel for the parties also submit that neither any provision of any Indian Stamp Act, nor any provision of the Patna High Court Rules provide that the High Court would not deal with the non-judicial stamp, whereas Rule 14 of Chapter X of the Patna High Court Rules, 1916 specifically provides that the Deputy Registrar of the High Court having first dated the decree as of the day when the judgment was delivered, shall sign it and sea! it with the seal of the High Court. They further submit that Order XLI Rule 35(4) of the Code of Civil Procedure provides that the decree shall be signed and dated by the Judge or Judges who passed it. They also contend that in view of the provisions of the Patna High Court Rules in place of Judges it has to be signed by the Deputy Registrar of the High Court. They thus submit that in Probate Case No., 05 of 1997 (Smt. Leshma Dutt @ Lesee V/s. Subhash Sinha) the grant of probate was prepared on non-judicial stamp purchased by the office of the High Court for which money was deposited by the parties to the Probate. They thus submit that in Probate Case No., 05 of 1997 (Smt. Leshma Dutt @ Lesee V/s. Subhash Sinha) the grant of probate was prepared on non-judicial stamp purchased by the office of the High Court for which money was deposited by the parties to the Probate. They also referred to First Appeal No. 339 of 1977 which had arisen out of a Partition Suit and in the said appeal a compromise petition was filed and by order dated 5.7.1983 this court decreed the suit on compromise directing the compromise petition to be made part of the decree of the High Court, whereafter a decree was prepared by this court and was signed by the Deputy Registrar on 9.8.1983. They further submit that there are a number of similar other appeals also in which decrees were prepared by this court. 4. From the case laws relied upon by the Decree Department, it is quite apparent that in that case according to compromise the Pleader Commissioner was to be appointed and since the Pleader Commissioner could not have been appointed by this court, the matter had to be sent to the learned court below for preparation of final decree. But in the instant case, the matter is absolutely different as there is no question for appointment of Pleader Commissioner because the matter has been compromised and the parties have themselves got the lands partitioned amicably and have come in possession of respective portions allotted to each of them as per the compromise and hence no order for appointment of Pleader Commissioner was given in order dated 27.7.2006 passed in the instant First Appeal by which direction was given only to prepare a Final Decree as per the terms of the compromise. 5. 5. It transpires that the appeal was disposed of in terms of compromise and office was directed to prepare a decree accordingly by order dated 27.7.2006, but for about one and half years the said order was not complied and only when this court took a serious view of the matter and passed order dated 17.1.2008 directing the office to prepare a decree as per the specific directions of this court, the office started raising the aforesaid flimsy objection merely with a view to shift the courts attention from their folly of taking such a long time in preparation of the decree to the aforementioned frivolous and untenable issue, which is deplorable to say the least. 6. It is shocking to know that the officers of the Decree Department of this Court are not aware of their duties and functions and are so much blissfully ignorant that they could not even realise that they are raising such obnoxious objection before a court of law. Had they any genuine problem with regard to preparation of the final decree as per the order of this court dated 27.7.2006, they could have immediately thereafter got the First Appeal listed under the heading Orders for clarification, if any required, but the same having not been done, the matter has been delayed unnecessarily for about two years. Office is directed to refrain from such negligence in future. 7. In the aforesaid circumstances, the concerned office of this court is directed to immediately prepare the decree as per the order of this court dated 27.7.2006 in accordance with law keeping in view the provision of Order 20 Rule 6A without any further delay and lame excuses.