Partition Decree Becomes Executable Only After Stamp Duty Is Paid; Decree Holder Can Recover Amount From Co-Sharers: Calcutta High Court
The Calcutta High Court has held that a final decree in a partition suit cannot be fully executed unless it is duly engrossed on stamped paper upon payment of the requisite stamp duty, observing that compliance with the Stamp Act is a condition precedent for execution. At the same time, the Court clarified that to avoid delay in enforcement, the decree holder may deposit the entire stamp duty...
The Calcutta High Court has held that a final decree in a partition suit cannot be fully executed unless it is duly engrossed on stamped paper upon payment of the requisite stamp duty, observing that compliance with the Stamp Act is a condition precedent for execution. At the same time, the Court clarified that to avoid delay in enforcement, the decree holder may deposit the entire stamp duty for the whole property and subsequently recover proportionate shares from the other co-sharers.
Justice Shampa Dutt (Paul), exercising revisional jurisdiction, was dealing with a challenge to orders of the executing court which had refused to recall the writ of delivery of possession and declined to stay execution of a final decree passed in a long-pending partition suit.
The dispute arose out of Title Suit No. 1843 of 2005 in which a preliminary decree for partition was passed, followed by a final decree allocating one-fourth shares to each co-shareholder. The final decree had already survived appellate scrutiny, with both the Division Bench and the Supreme Court dismissing the challenges. The decree holders thereafter initiated execution proceedings.
During execution, the judgment debtor objected to enforcement of the decree, contending that the decree was insufficiently stamped since stamp duty had been paid only in respect of the decree holder's share and not for the entire property sought to be partitioned. It was argued that unless full stamp duty was paid on the entire value of the property, the final decree could not be treated as executable.
The executing court rejected the objection, noting that the office had assessed stamp duty and the decree had been engrossed upon payment by the decree holder in terms of Article 45 of Schedule 1A of the Indian Stamp Act as applicable in West Bengal. It recorded that since all parties were allotted equal one-fourth shares, stamp duty equivalent to one such share had been paid.
Before the High Court, however, the decree holders undertook to pay stamp duty for the entire property to remove any technical impediment to execution, with liberty to recover the respective contributions from the other co-sharers.
Taking note of Supreme Court rulings in Shankar Balwant Lokhande v. Chandrakant Lokhande and Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, the Court reiterated that a final decree becomes executable only after it is drawn up and properly stamped. It observed that until the decree is engrossed on requisite stamp paper, it cannot be acted upon or enforced.
At the same time, the Court emphasised that procedural requirements should not frustrate the fruits of litigation. Accepting the undertaking of the decree holders, the Bench granted liberty to them to deposit the entire stamp duty for the total property and recover the proportionate shares from the other co-owners through due process.
The Court directed that upon such payment, the executing court shall proceed with execution and ensure full satisfaction of the decree within one month.
Accordingly, the revisional application was disposed of with liberty as granted, and all interim orders were vacated.
Case: Sri Sandip Kumar Saha v. Somnath Saha & Ors.
Case No.: CO 262 of 2024