Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 102 (RAJ)

Alladi v. Shamim Bano

2013-01-15

BELA M.TRIVEDI

body2013
JUDGMENT 1. - The present petition has been filed by the petitioner-judgment debtor under Section 115 of CPC challenging the order dated 7.11.2012 passed by the Civil Judge (JD) Deoli, District Tonk (hereinafter referred to as the "executing court"), whereby the executing court has dismissed the application of the petitioner filed under section 47 read with section 151 of CPC in Civil Misc. Execution Application No.6/2010. 2. In the instant case, there are certain undisputed facts. It is not disputed that the respondent no.1-plaintiff-decree holder filed the suit against the petitioner and the respondent no.2-defendants-judgments debtors seeking her ⅓rd share in the suit properties. The defendants had not contested the suit and an ex-parte decree dated 24.2.2009 came to be passed by the Civil Judge(JD) Deoli, District-Tonk (hereinafter referred to as "the trial court") in Civil Suit No.5/2005 3. It appears that the said decree was challenged by the petitioner under Order 9, Rule 13 of CPC by filing an application, however, the same was dismissed by the court and against the said order, appeal was also dismissed. Therefore, the decree dated 24.2.2009 attained the finality. The said decree being preliminary decree, the final decree came to be passed by the court on 19.5.2010. It appears that the said final decree was also not challenged by the petitioner and the same attained the finality. The respondent No.1-decree holder having filed the execution petition being No.6/2010 for the execution of the said decree, the petitioner filed an objection application under Section 47 read with section 151 of CPC raising objection against the execution of the said decree on the ground that the respondent no.1 having not paid the requisite stamp duty on the final decree, which was an instrument of partition, the same cannot be executed. The said application was dismissed by the executing court vide the impugned order dated 7.11.2012. 4. It has been sought to be submitted by learned counsel Mr. The said application was dismissed by the executing court vide the impugned order dated 7.11.2012. 4. It has been sought to be submitted by learned counsel Mr. GP Sharma for the petitioner that the final decree of the court being an instrument of partition within the meaning of section 2 (XX) of Rajasthan Stamp Act (hereinafter referred to as "the said Act"), the same is chargeable to duty under the said Act and unless the requisite stamp duty is paid up by the respondent no.1 towards her ⅓rd share in the suit properties as per the decree, the said decree could not be acted upon or executed in view of section 39 of the said Act. According to him, the executing court has failed to appreciate the said provisions and wrongly dismissed his application. The learned Sr. counsel Mr. RK Agarwal for the respondent no.1, while not disputing the legal position that the final decree of partition passed by the trial court would be an instrument of partition liable for the payment of stamp duty, he has submitted that there was no direction by the trial court or executing court for the payment of stamp duty as required under the said Act. He submitted that the respondent No.1 is ready and willing to pay the requisite stamp duty if directed by the court. 5. In the instant case, as stated hereinabove, it is not disputed by the learned counsel for the parties that the final decree passed by the court with regard to ⅓rd share of the respondent no.1 could not be executed till the requisite stamp duty, towards her ⅓rd share in the suit properties as determined by the trial court, is paid up. The only issue raised by the learned Sr. counsel Mr.Agarwal for respondent no.1 is that there was no direction given by any court for the payment of said duty and therefore the respondent no.1 had not paid up the same. There is substance in the submissions made by Mr.GP Sharma for the petitioner that the executing court has committed an error in not appreciating the said legal position and dismissed the application of the petitioner only on the ground that the petitioner had not challenged the preliminary or final decree in question. Hence, the impugned order passed by the executing court deserves to be modified. 6. Hence, the impugned order passed by the executing court deserves to be modified. 6. In view of the above, the respondent no.1 is directed to pay the requisite stamp duty on her ⅓rd share in the suit properties as per the final decree passed by the trial court and it is directed that on such payment having been made, the final decree in question shall be executed by the executing court in accordance with law. The impugned order dated 7.11.2012 passed by the executing court stands set aside and the revision petition is allowed accordingly.Revision petition allowed. *******